[Senate Prints 106-71]
[From the U.S. Government Publishing Office]




106th Congress              COMMITTEE PRINT            S. Prt.
2d Session                                              106-71
_______________________________________________________________________

                                     

 
      TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE
                          UNITED STATES SENATE

                               ----------                              

                              A   S T U D Y

                            PREPARED FOR THE

                     COMMITTEE ON FOREIGN RELATIONS
                          UNITED STATES SENATE

                                 BY THE

                     CONGRESSIONAL RESEARCH SERVICE
                          LIBRARY OF CONGRESS

[GRAPHIC] [TIFF OMITTED] TONGRESS.#13


                              JANUARY 2001



106th Congress 
 2d Session                 COMMITTEE PRINT                     S. Prt.
                                                                 106-71
_______________________________________________________________________

                                     


      TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE

                          UNITED STATES SENATE

                               __________

                              A   S T U D Y

                            PREPARED FOR THE

                     COMMITTEE ON FOREIGN RELATIONS

                          UNITED STATES SENATE

                                 BY THE

                     CONGRESSIONAL RESEARCH SERVICE

                          LIBRARY OF CONGRESS

[GRAPHIC] [TIFF OMITTED] TONGRESS.#13


                              JANUARY 2001

       Printed for the use of the Committee on Foreign Relations

                               __________

                    U.S. GOVERNMENT PRINTING OFFICE
66922 cc                    WASHINGTON : 2001




                     COMMITTEE ON FOREIGN RELATIONS
                 JESSE HELMS, North Carolina, Chairman

JOSEPH R. BIDEN, JR., Delaware       RICHARD G. LUGAR, Indiana
PAUL S. SARBANES, Maryland           CHUCK HAGEL, Nebraska
CHRISTOPHER J. DODD, Connecticut     GORDON SMITH, Oregon
JOHN F. KERRY, Massachusetts         ROD GRAMS, Minnesota
RUSSELL D. FEINGOLD, Wisconsin       SAM BROWNBACK, Kansas
PAUL WELLSTONE, Minnesota            CRAIG THOMAS, Wyoming
BARBARA BOXER, California            JOHN ASHCROFT, Missouri
ROBERT G. TORRICELLI, New Jersey     BILL FRIST, Tennessee
                                     LINCOLN D. CHAFEE, Rhode Island

                     Stephen Biegun, Staff Director
                 Edwin K. Hall, Minority Staff Director
                   Richard J. Douglas, Chief Counsel
                     Brian McKeon, Minority Counsel


                          LETTER OF SUBMITTAL

                              ----------                              

            Congressional Research Service,
                           The Library of Congress,
                           Washington, DC, January 2, 2001.
Hon. Jesse Helms,
Chairman, Committee on Foreign Relations,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: In accordance with your request, we have 
revised and updated the study ``Treaties and Other 
International Agreements: The Role of the United States 
Senate,'' last published in 1993. This new edition covers the 
subject matter through the 106th Congress.
    This study summarizes the history of the treatymaking 
provisions of the Constitution and international and domestic 
law on treaties and other international agreements. It traces 
the process of making treaties from their negotiation to their 
entry into force, implementation, and termination. It examines 
differences between treaties and executive agreements as well 
as procedures for congressional oversight. The report was 
edited by Richard F. Grimmett, Specialist in National Defense. 
Individual chapters were prepared by policy specialists and 
attorneys of the Congressional Research Service identified at 
the beginning of each chapter.
    The Congressional Research Service would like to thank 
Richard Douglas, Chief Counsel of the Committee, Edwin K. Hall, 
Minority Staff Director of the Committee, Brian P. McKeon, 
Minority Counsel of the Committee, and Robert Dove, 
Parliamentarian of the Senate, for their comments on Senate 
procedures for consideration of treaties. We would also like to 
thank Robert E. Dalton, Assistant Legal Adviser for Treaty 
Affairs, Department of State, and other staff members of the 
Treaty Office for their assistance with various factual 
questions regarding treaties and executive agreements.
            Sincerely,
                                       Daniel P. Mulhollan,
                                                          Director.


                            C O N T E N T S

                              ----------                              

                                                                   Page

Letter of submittal..............................................   iii
Introductory note................................................    xi
I. Overview of the treaty process................................     1
    A. Background................................................     2
        The evolution of the Senate role.........................     2
        Treaties under international law.........................     3
        Treaties under U.S. law..................................     4
        Executive agreements under U.S. law......................     4
            (1) Congressional-executive agreements...............     5
            (2) Agreements pursuant to treaties..................     5
            (3) Presidential or sole executive agreements........     5
        Steps in the U.S. process of making treaties and 
          executive agreements...................................     6
            Negotiation and conclusion...........................     6
            Consideration by the Senate..........................     7
            Presidential action after Senate action..............    12
            Implementation.......................................    12
            Modification, extension, suspension, or termination..    13
            Congressional oversight..............................    14
        Trends in Senate action on treaties......................    14
    B. Issues in treaties submitted for advice and consent.......    15
        Request for consent without opportunity for advice.......    15
        Multilateral treaties....................................    16
        Diminishing use of treaties for major political 
          commitments............................................    17
        Unilateral executive branch action to reinterpret, 
          modify, and terminate treaties.........................    18
        Difficulty in overseeing treaties........................    19
        Minority power...........................................    19
        The House role in treaties...............................    19
        Vienna Convention on the Law of Treaties.................    20
    C. Issues in agreements not submitted to the Senate..........    21
        Increasing use of executive agreements...................    22
        Oversight of executive agreements--the Case-Zablocki Act.    22
        Learning of executive agreements.........................    22
        Determining authority for executive agreements...........    23
        Non-binding international agreements.....................    23
    D. Deciding between treaties and executive agreements........    24
        Scope of the treaty power; proper subject matter for 
          treaties...............................................    24
        Scope of executive agreements; proper subject matter for 
          executive agreements...................................    25
        Criteria for treaty form.................................    26
II. Historical background and growth of international agreements.    27
    A. Historical background of constitutional provisions........    27
        The Constitutional Convention............................    28
        Debate on adoption.......................................    29
    B. Evolution into current practice...........................    31
        Washington's administrations.............................    32
        Presidencies from Adams to Polk..........................    35
        Indian treaties..........................................    36
        Conflicts and cooperation................................    37
        Executive agreements and multilateral agreements.........    38
        Increasing proportion of executive and statutory 
          agreements.............................................    40
        Growth in multilateral agreements........................    42
III. International agreements and international law..............    43
    A. The Vienna Convention on the Law of Treaties..............    43
        International law status.................................    43
        Senate action on the convention..........................    45
    B. Treaty definition.........................................    49
    C. Criteria for a binding international agreement............    50
        Intention of the parties to be bound under international 
          law....................................................    50
        Significance.............................................    51
        Specificity..............................................    52
        Form of the agreement....................................    52
    D. Limitations on binding international agreements and 
      grounds for invalidation...................................    53
        Invalidation by fraud, corruption, coercion or error.....    53
        Invalidation by conflict with a peremptory norm of 
          general international law ( jus cogens)................    54
         Invalidation by violation of domestic law governing 
          treaties...............................................    56
     E. Non-binding agreements and functional equivalents........    58
         Unilateral commitments and declarations of intent.......    59
         Joint communiques and joint statements..................    60
         Informal agreements.....................................    61
         Status of non-binding agreements........................    62
IV. International agreements and U.S. law........................    65
    A. Treaties..................................................    65
         Scope of the treaty power...............................    65
         Treaties as law of the land.............................    72
    B. Executive agreements......................................    76
         Congressional-executive agreements......................    78
         Agreements pursuant to treaties.........................    86
         Presidential or sole executive agreements...............    87
V. Negotiation and conclusion of international agreements........    97
    A. Negotiation...............................................    97
        Logan Act................................................    98
    B. Initiative for an agreement; setting objectives...........   100
    C. Advice and consent on appointments........................   103
        Unconfirmed presidential agents..........................   105
    D. Consultations during the negotiations.....................   106
        Inclusion of Members of Congress on delegations..........   109
    E. Conclusion or signing.....................................   111
    F. Renegotiation of a treaty following Senate action.........   112
    G. Interim between signing and entry into force; provisional 
      application................................................   113
VI. Senate consideration of treaties.............................   117
    A. Senate receipt and referral...............................   118
        Senate Rule XXX..........................................   118
        Executive session--proceedings on treaties...............   119
        Action on receipt of treaty from the president...........   119
    B. Foreign Relations Committee consideration.................   122
    C. Conditional approval......................................   124
        Types of conditions......................................   124
        Condition regarding treaty interpretation................   128
        Condition regarding supremacy of the Constitution........   131
    D. Resolution of ratification................................   136
     E. Senate floor procedure...................................   136
        Executive session........................................   136
         Non-controversial treaties..............................   137
         Controversial treaties..................................   138
        Consideration of treaties under cloture..................   141
         Final vote..............................................   142
         Failure to receive two-thirds majority..................   143
     F. Return or withdrawal.....................................   145
VII. Presidential options on treaties after Senate action........   147
    A. Ratification..............................................   147
        Ratification of the treaty...............................   147
        Exchange or deposit of instruments of ratification (entry 
          into force)............................................   149
    B. Resubmission of the treaty or submission of protocol......   150
    C. Inaction or refusal to ratify.............................   152
        Procedure when other nations attach new conditions.......   153
VIII. Dispute settlement, rules of interpretation, and obligation 
  to implement...................................................   157
    A. Dispute settlement........................................   157
        Conciliation.............................................   158
        Arbitration..............................................   159
        Judicial settlement......................................   161
    B. Rules of interpretation...................................   163
    C. Obligation to implement...................................   166
IX. Amendment or modification, extension, suspension, and 
  termination of treaties and other international agreements.....   171
    A. Introduction..............................................   171
    B. Amendment and modification................................   176
        Treaties.................................................   176
        Executive agreements.....................................   183
    C. Extension.................................................   184
        Treaties.................................................   184
        Executive agreements.....................................   187
    D. Suspension................................................   187
        Treaties.................................................   187
        Executive agreements.....................................   192
    E. Termination or withdrawal.................................   192
        Treaties.................................................   192
            Terms of treaty; unanimous consent...................   192
            Breach...............................................   193
            Impossibility of performance.........................   194
            Rebus sic stantibus..................................   194
            Jus cogens...........................................   195
            Severance of diplomatic relations....................   195
            Hostilities..........................................   196
            State succession.....................................   196
    F. U.S. law and practice in terminating international 
      agreements.................................................   198
        General..................................................   198
        Treaties.................................................   201
            Executive action pursuant to prior authorization or 
              direction by the Congress..........................   202
            Executive action pursuant to prior authorization or 
              direction by the Senate............................   204
            Executive action without prior specific authorization 
              or direction, but with subsequent approval by the 
              Congress...........................................   205
            Executive action without specific prior authorization 
              or direction, but with subsequent approval by the 
              Senate.............................................   205
            Executive action without specific prior authorization 
              or direction, and without subsequent approval by 
              either the Congress or the Senate..................   206
        Executive agreements.....................................   208
X. Congressional oversight of international agreements...........   209
    A. The Case Act..............................................   209
         Origins.................................................   210
             Provisions for publication..........................   210
             The Bricker amendment and its legacy................   212
             National commitments concerns.......................   213
             Military base agreements (Spain, Portugal, Bahrain).   215
             Separation of Powers Subcommittee approach..........   216
         Intent and content of the Case Act......................   217
         Implementation, 1972-1976...............................   218
         Amendments of the Case Act, 1977-1978...................   222
         Committee procedures under the Case Act.................   224
             Senate Foreign Relations Committee procedures.......   224
             House International Relations Committee procedures..   225
         Impact and assessment of the Case Act...................   225
             Number of agreements transmitted....................   226
             Late transmittal of Case Act agreements.............   228
             Insufficient transmittal of agreements to Congress..   230
             Pre-Case Act executive agreements...................   232
     B. Consultations on form of agreement.......................   233
     C. Congressional review or approval of agreements...........   235
     D. Required reports to Congress.............................   238
     E. Other tools of congressional oversight...................   239
         Implementation legislation..............................   240
         Recommendations in legislation..........................   240
         Consultation requirements...............................   242
         Oversight hearings......................................   243
XI. Trends in major categories of treaties.......................   245
    A. Political and security agreements.........................   246
        National security and defense commitments................   247
            Treaty on the Final Settlement with Respect to 
              Germany............................................   250
            Maritime Boundary Agreement with the Soviet Union....   251
        Arms control treaties....................................   251
            INF Treaty...........................................   254
            Threshold Test Ban Treaty and Protocol...............   256
            CFE Treaty...........................................   257
            CFE Flank Agreement..................................   257
            START I Treaty.......................................   258
            START II.............................................   260
            Open Skies Treaty....................................   261
            Chemical Weapons Convention..........................   261
            Comprehensive Test Ban Treaty........................   262
    B. Economic treaties.........................................   265
        Friendship, commerce, and navigation treaties............   265
        Investment treaties......................................   266
        Consular conventions.....................................   269
        Tax conventions..........................................   270
            Treaty shopping......................................   271
            Exchange of information..............................   272
            Allocation of income of multinational business 
              enterprises........................................   272
            Taxation of equipment rentals........................   272
            Arbitration of competent authority issues............   272
            Insurance excise tax.................................   273
    C. Environmental treaties....................................   273
        No-reservations clauses..................................   274
        Fishery conventions......................................   276
    D. Legal cooperation.........................................   278
        Extradition treaties.....................................   278
        Mutual legal assistance treaties.........................   282
    E. Human rights conventions..................................   285
        Genocide Convention......................................   287
        Labor conventions........................................   288
        Convention Against Torture...............................   290
        Civil and Political Rights Covenant......................   291
        Racial Discrimination Convention.........................   292
        Other human rights treaties..............................   293

                               Appendixes

1. Treaties and other international agreements: an annotated 
  bibliography...................................................   295
    A. Introduction..............................................   295
    B. International agreements and international law............   295
        1. Overview..............................................   295
            a. General...........................................   295
            b. Treaties and agreements involving international 
              organizations......................................   298
        2. Negotiation and conclusion of treaties and 
          international agreements...............................   299
            a. Negotiation and the treatymaking process..........   299
                (1) General......................................   299
                (2) Multilateral treaties........................   299
            b. Amendments, interpretive declarations, and 
              reservations.......................................   300
            c. Acceptance, depositary, registration and 
              publication........................................   301
                (1) Acceptance...................................   301
                (2) Depositary...................................   301
                (3) Registration and publication.................   302
        3. Entry into force......................................   302
        4. Interpretation........................................   303
        5. Modification, suspension, and termination of treaties.   307
            a. Overview..........................................   307
            b. Questions of treaty validity......................   310
        6. Dispute settlement....................................   312
        7. Succession of states..................................   313
    C. International agreements and U.S. law.....................   314
        1. General...............................................   314
        2. Congressional and Presidential roles in the making of 
          treaties and international agreements..................   319
        3. Communication of international agreements to Congress.   330
        4. U.S. termination of treaties..........................   332
    D. Guides....................................................   334
        1. Guides to resources on treaties.......................   334
        2. Compilations of treaties, and indexes international in 
          scope..................................................   335
        3. U.S. treaties and the treatymaking process............   338
            a. Sources for treaty information throughout the 
              treatymaking process...............................   338
                CIS/index........................................   338
                Congressional Index..............................   338
                Congressional Record.............................   341
                Executive Journal of the Senate..................   341
                Senate executive reports.........................   341
                Senate Foreign Relations Committee calendar......   341
                Senate treaty documents..........................   341
                Department of State Dispatch.....................   341
                Department of State Bulletin.....................   341
                Foreign Policy Bulletin..........................   342
                Department of State Press Releases...............   342
                Federal Register.................................   342
                Monthly Catalog..................................   342
                Shepard's United States Citations--Statutes 
                  Edition........................................   342
                Statutes at Large................................   342
                Weekly Compilation of Presidential Documents.....   343
            b. Official treaty series............................   343
                TIAS.............................................   343
                UST..............................................   343
            c. Indexes and retrospective compilations............   343
                Current..........................................   343
                1950+............................................   344
                1776-1949........................................   344
                1776-1949 (Bevans)...............................   344
                1776-1931 (Malloy)...............................   344
                1776-1863 (Miller)...............................   344
            d. Status of treaties................................   345
                Treaties in force................................   345
                Unperfected treaties.............................   345
                Additional information...........................   345
        4. Topical collections...................................   346
            a. Diplomatic and national security issues...........   346
            b. Economic and commercial issues....................   347
            c. International environmental issues and management 
              of common areas....................................   348
2. Case-Zablocki Act on Transmittal of International Agreements 
  and Related Reporting Requirements.............................   349
3. Coordination and reporting of international agreements, State 
  Department regulations.........................................   351
4. Department of State Circular 175 Procedures on Treaties.......   357
    710 Purpose and disclaimer...................................   357
    711 Purpose (state only).....................................   357
    712 Disclaimer (state only)..................................   357
    720 Negotiation and signature................................   357
    721 Exercise of the international agreement power............   358
    722 Action required in negotiation and/or signature of 
      treaties and agreements....................................   359
    723 Responsibility of office or officer conducting 
      negotiations...............................................   361
    724 Transmission of international agreements other than 
      treaties to Congress: compliance with the Case-Zablocki Act   364
    725 Publication of treaties and other international 
      agreements of the United States............................   364
    730 Guidelines for concluding international agreements.......   364
    731 Conformity of texts......................................   366
    732 Exchange or exhibition of full powers....................   366
    733 Signature and sealing....................................   366
    734 Exchange of ratifications................................   367
    740 Multilateral treaties and agreements.....................   367
    741 Official and working languages...........................   368
    742 Engrossing...............................................   369
    743 Full powers..............................................   370
    744 Signature and sealing....................................   370
    745 Disposition of final documents of conference.............   370
    746 Procedure following signature............................   371
    750 Responsibilities of the Assistant Legal Adviser for 
      Treaty Affairs.............................................   371
5. The Vienna Convention on the Law of Treaties, Senate Ex. L, 
  92d Congress 1st Session, with list of signatures, 
  ratifications and accessions deposited as of December 11, 2000.   375
    Letter of transmittal........................................   377
    Letter of submittal..........................................   378
    Vienna Convention on the Law of Treaties.....................   384
    List of signatures, ratifications deposited and accessions 
      deposited as of December 11, 2000..........................   407
6. Glossary of treaty terminology................................   411
7. Simultaneous consideration of treaties and amending protocols.   415
    1. Treaty with Mexico Relating to Utilization of the Waters 
      of Certain Rivers (Ex. A, 78-2, and Ex. H, 78-2)...........   415
    2. Convention Between France and the United States as to 
      Double Taxation and Fiscal Assistance and Supplementary 
      Protocol (S. Ex. A, 80-1 and S. Ex. G, 80-2)...............   415
    3. Tax Convention with Canada and Two Protocols (Ex. T, 96-2; 
      Treaty Doc. 98-7; and Treaty Doc. 98-22)...................   416
    4. Treaties with the U.S.S.R. on the Limitation of 
      Underground Nuclear Weapon Tests and on Underground Nuclear 
      Explosions for Peaceful Purposes and Protocols (Ex. N, 94-
      2; and Treaty Doc. 101-19).................................   416
8. Treaties approved by the Senate...............................   417
    2000.........................................................   417
    1999.........................................................   420
    1998.........................................................   422
    1997.........................................................   425
    1996.........................................................   426
    1995.........................................................   429
    1994.........................................................   430
    1993.........................................................   430
9. Treaties rejected by the Senate...............................   433
    1999.........................................................   433
10. Letter of response from Acting Director Thomas Graham, Jr. to 
  Senator Pell accepting the narrow interpretation of the ABM 
  Treaty.........................................................   435

                                 Tables

II-1. Treaties and executive agreements concluded by the United 
  States, 1789-1989..............................................    39
II-2. Treaties and executive agreements concluded by the United 
  States, 1930-1999..............................................    39
X-1. Transmittal of executive agreements to Congress, 1978-1999..   226
X-2. Agencies submitting agreements late, 1979-1999..............   229
X-3. Statutory requirements for transmittal of agreements to 
  Congress.......................................................   236
X-4. Required reports related to international agreements........   239
X-5. Legislation implementing treaties...........................   241
XI-1. Human rights treaties pending on the Senate Foreign 
  Relations Committee calendar...................................   286
A1-1. Publications providing information on U.S. treaties 
  throughout the treatymaking process............................   339

                                 Charts

1. Steps in the making of a treaty...............................     8
2. Steps in the making of an executive agreement.................    10


                           INTRODUCTORY NOTE

                              ----------                              

    This study revises a report bearing the same title 
published in 1993. It is intended to provide a reference volume 
for use by the U.S. Senate in its work of advising and 
consenting to treaties. It summarizes international and U.S. 
law on treaties and other international agreements. It traces 
the process of making treaties through the various stages from 
their initiation and negotiation to ratification, entry into 
force, implementation and oversight, modification or 
termination--describing the respective senatorial and 
Presidential roles at each stage. The study also provides 
background information on issues concerning the Senate role in 
treaties and other international agreements through specialized 
discussions in individual chapters. The appendix contains, 
among other things, a glossary of frequently used terms, 
important documents related to treaties: the Vienna Convention 
on the Law of Treaties (unratified by the United States); State 
Department Circular 175 describing treaty procedures in the 
executive branch; the State Department regulation, 
``Coordination and Reporting of International Agreements,'' and 
material related to the Case-Zablocki Act on the reporting of 
international agreements to Congress. Also included are a list 
of treaties approved by the Senate from January 1993 through 
October 2000, examples of treaty documents, and an annotated 
bibliography.


                 I. OVERVIEW OF THE TREATY PROCESS \1\
---------------------------------------------------------------------------

    \1\ Prepared by Richard F. Grimmett, Specialist in National 
Defense.
---------------------------------------------------------------------------
                              ----------                              

    Treaties are a serious legal undertaking both in 
international and domestic law. Internationally, once in force, 
treaties are binding on the parties and become part of 
international law. Domestically, treaties to which the United 
States is a party are equivalent in status to Federal 
legislation, forming part of what the Constitution calls ``the 
supreme Law of the Land.''
    However, the word treaty does not have the same meaning in 
the United States and in international law. Under international 
law, a ``treaty'' is any legally binding agreement between 
nations. In the United States, the word treaty is reserved for 
an agreement that is made ``by and with the Advice and Consent 
of the Senate'' (Article II, Section 2, Clause 2 of the 
Constitution). International agreements not submitted to the 
Senate are known as ``executive agreements'' in the United 
States, but they are considered treaties and therefore binding 
under international law.
    For various reasons, Presidents have increasingly concluded 
executive agreements. Many agreements are previously authorized 
or specifically approved by legislation, and such 
``congressional-executive'' or statutory agreements have been 
treated almost interchangeably with treaties in several 
important court cases. Others, often referred to as ``sole 
executive agreements,'' are made pursuant to inherent powers 
claimed by the President under Article II of the Constitution. 
Neither the Senate nor the Congress as a whole is involved in 
concluding sole executive agreements, and their status in 
domestic law is not fully resolved.
    Questions on the use of treaties, congressional-executive 
agreements, and sole executive agreements underlie many issues. 
Therefore, any study of the Senate role in treaties must also 
deal with executive agreements. Moreover, the President, the 
Senate, and the House of Representatives have different 
institutional interests at stake, a fact which periodically 
creates controversy. Nonetheless, the President, Senate, and 
House share a common interest in making international 
agreements that are in the national interest in the most 
effective and efficient manner possible.
    The requirement for the Senate's advice and consent gives 
the Senate a check over all international agreements submitted 
to it as treaties. The Senate may refuse to give its approval 
to a treaty or do so only with specified conditions, 
reservations, or understandings. In addition, the knowledge 
that a treaty must be approved by a two-thirds majority in the 
Senate may influence the content of the document before it is 
submitted. Even so, the Senate has found it must be vigilant if 
it wishes to maintain a meaningful role in treaties that are 
submitted.
    The main threat of erosion of the Senate treaty power comes 
not from the international agreements that are submitted as 
treaties, however, but from the many international agreements 
that are not submitted for its consent. In addition to 
concluding hundreds of executive agreements, Presidents have 
made important commitments that they considered politically 
binding but not legally binding. Maintaining the Senate role in 
treaties requires overseeing all international agreements to 
assure that agreements that should be treaties are submitted to 
the Senate.

                             A. Background

                  the evolution of the senate role \2\
---------------------------------------------------------------------------

    \2\ See Chapters II and VI for references and additional 
discussion.
---------------------------------------------------------------------------
    The Constitution states that the President ``shall have 
Power, by and with the Advice and Consent of the Senate, to 
make Treaties, provided two-thirds of the Senators present 
concur.'' The Convention that drafted the Constitution did not 
spell out more precisely what role it intended for the Senate 
in the treatymaking process. Most evidence suggests that it 
intended the sharing of the treaty power to begin early, with 
the Senate helping to formulate instructions to negotiators and 
acting as a council of advisers to the President during the 
negotiations, as well as approving each treaty entered into by 
the United States. The function of the Senate was both to 
protect the rights of the states and to serve as a check 
against the President's taking excessive or undesirable actions 
through treaties. The Presidential function in turn was to 
provide unity and efficiency in treatymaking and to represent 
the national interest as a whole.
    The treaty clause of the Constitution does not contain the 
word ratification, which refers to the formal act by which a 
nation affirms its willingness to be bound by a specific 
treaty. From the beginning, the formal act of ratification has 
been performed by the President acting ``by and with the advice 
and consent of the Senate.'' The President ratifies the treaty, 
but, only after receiving the advice and consent of the Senate.
    When the Constitution was drafted, the ratification of a 
treaty was generally considered obligatory by the nations 
entering into it if the negotiators stayed within their 
instructions. Therefore Senate participation during the 
negotiations stage seemed essential if the Senate was to play a 
meaningful constitutional role. At the time, such direct 
participation by the Senate also seemed feasible, since the 
number of treaties was not expected to be large and the 
original Senate contained only 26 Members.
    Within several years, however, problems were encountered in 
treatymaking and Presidents abandoned the practice of regularly 
getting the Senate's advice and consent on detailed questions 
prior to negotiations. Instead, Presidents began to submit the 
completed treaty after its conclusion. Since the Senate had to 
be able to advise changes or deny consent altogether if its 
role was to be meaningful, the doctrine of obligatory 
ratification was for all practical purposes abandoned.
    Although Senators sometimes play a part in the initiation 
or development of a treaty, the Senate role now is primarily to 
pass judgment on whether completed treaties should be ratified 
by the United States. The Senate's advice and consent is asked 
on the question of Presidential ratification. When the Senate 
considers a treaty it may approve it as written, approve it 
with conditions, reject and return it, or prevent its entry 
into force by withholding approval. In practice the Senate 
historically has given its advice and consent unconditionally 
to the vast majority of treaties submitted to it.
    In numerous cases, the Senate has approved treaties subject 
to conditions. The President has usually accepted the Senate 
conditions and completed the ratification process. In some 
cases, treaties have been approved with reservations that were 
unacceptable either to the President or the other party, and 
the treaties never entered into force.\3\
---------------------------------------------------------------------------
    \3\ These include treaties on income taxation with Thailand, signed 
March 1965, and Brazil, signed March 13, 1967.
---------------------------------------------------------------------------
    Only on rare occasions has the Senate formally rejected a 
treaty. The most famous example is the Versailles Treaty, which 
was defeated on March 19, 1920, although 49 Senators voted in 
favor and 35 against. This was a majority but not the required 
two-thirds majority so the treaty failed. Since then, the 
Senate has definitively rejected only three treaties.\4\ In 
addition, the Senate sometimes formally rejects treaties but 
keeps them technically alive by adopting or entering a motion 
to reconsider. This has happened, for instance, with the 
Optional Protocol Concerning the Compulsory Settlement of 
Disputes in 1960, the Montreal Aviation Protocols Nos. 3 and 4 
in 1983, and the Comprehensive Test Ban Treaty in 1999.
---------------------------------------------------------------------------
    \4\ Treaty on General Relations with Turkey, January 18, 1927; St. 
Lawrence Waterway Treaty with Canada, July 18, 1932 (the St. Lawrence 
Seaway was subsequently approved by legislation); and adherence to the 
Permanent Court of International Justice, January 29, 1935.
---------------------------------------------------------------------------
    More often the Senate has simply not voted on treaties that 
did not have enough support for approval, and the treaties 
remained pending in the Foreign Relations Committee for long 
periods. Eventually, unapproved treaties have been replaced by 
other treaties, amended by protocols and then approved, or 
withdrawn by or returned to the President. Thus the Senate has 
used its veto sparingly, but still demonstrated the necessity 
of its advice and consent and its power to block a treaty from 
entering into force.

                  treaties under international law \5\
---------------------------------------------------------------------------

    \5\ See Chapter III for references and additional discussion.
---------------------------------------------------------------------------
    Under international law an international agreement is 
generally considered to be a treaty and binding on the parties 
if it meets four criteria:
    (1) The parties intend the agreement to be legally binding 
and the agreement is subject to international law;
    (2) The agreement deals with significant matters;
    (3) The agreement clearly and specifically describes the 
legal obligations of the parties; and
    (4) The form indicates an intention to conclude a treaty, 
although the substance of the agreement rather than the form is 
the governing factor.
    International law makes no distinction between treaties and 
executive agreements. Executive agreements, especially if 
significant enough to be reported to Congress under the Case-
Zablocki Act, are to all intents and purposes binding treaties 
under international law.\6\
---------------------------------------------------------------------------
    \6\ The Case-Zablocki Act (Public Law 92-403, as amended), is also 
examined in Chapter X. See Appendix 2 for text of the law.
---------------------------------------------------------------------------
    On the other hand, many international undertakings and 
foreign policy statements, such as unilateral statements of 
intent, joint communiques, and final acts of conferences, are 
not intended to be legally binding and are not considered 
treaties.

                      treaties under u.s. law \7\
---------------------------------------------------------------------------

    \7\ See Chapter IV for references and additional discussion. See 
also Chapter X.
---------------------------------------------------------------------------
    Under the Constitution, a treaty, like a Federal statute, 
is part of the ``supreme Law of the Land.'' Self-executing 
treaties, those that do not require implementing legislation, 
automatically become effective as domestic law immediately upon 
entry into force. Other treaties do not become effective as 
domestic law until implementing legislation is enacted, and 
then technically it is the legislation, not the treaty unless 
incorporated into the legislation, that is the law of the land.
    Sometimes it is not clear on the face of a treaty whether 
it is self-executing or requires implementing legislation. Some 
treaties expressly call for implementing legislation or deal 
with subjects clearly requiring congressional action, such as 
the appropriation of funds or enactment of domestic penal 
provisions. The question of whether or not a treaty requires 
implementing legislation or is self-executing is a matter of 
interpretation largely by the executive branch or, less 
frequently, by the courts. On occasion, the Senate includes an 
understanding in the resolution of ratification that certain 
provisions are not self-executing or that the President is to 
exchange or deposit the instrument of ratification only after 
implementation legislation has been enacted.
    When a treaty is deemed self-executing, it overrides any 
conflicting provision of the law of an individual signatory 
state. If a treaty is in irreconcilable conflict with a Federal 
law, the one executed later in time prevails, although courts 
generally try to harmonize domestic and international 
obligations whenever possible.

                executive agreements under u.s. law \8\
---------------------------------------------------------------------------

    \8\ See Chapter IV for references and additional discussion. See 
also Chapter X.
---------------------------------------------------------------------------
    The status in domestic law of executive agreements, that 
is, international agreements made by the executive branch but 
not submitted to the Senate for its advice and consent, is less 
clear. Three types of executive agreements and their domestic 
legal status are discussed below.
(1) Congressional-executive agreements
    Most executive agreements are either explicitly or 
implicitly authorized in advance by Congress or submitted to 
Congress for approval. Some areas in which Congress has 
authorized the conclusion of international agreements are 
postal conventions, foreign trade, foreign military assistance, 
foreign economic assistance, atomic energy cooperation, and 
international fishery rights. Sometimes Congress has authorized 
conclusion of agreements but required the executive branch to 
submit the agreements to Congress for approval by legislation 
or for a specified waiting period before taking effect. 
Congress has also sometimes approved by joint resolution 
international agreements involving matters that are frequently 
handled by treaty, including such subjects as participation in 
international organizations, arms control measures, and 
acquisition of territory. The constitutionality of this type of 
agreement seems well established and Congress has authorized or 
approved them frequently,
(2) Agreements pursuant to treaties
    Some executive agreements are expressly authorized by 
treaty or an authorization for them may be reasonably inferred 
from the provisions of a prior treaty. Examples include 
arrangements and understandings under the North Atlantic Treaty 
and other security treaties. The President's authority to 
conclude agreements pursuant to treaties seems well 
established, although controversy occasionally arises over 
whether particular agreements are within the purview of an 
existing treaty.
(3) Presidential or sole executive agreements
    Some executive agreements are concluded solely on the basis 
of the President's independent constitutional authority and do 
not have an underlying explicit or implied authorization by 
treaty or statute. Authorities from the Constitution that 
Presidents claim as a basis for such agreements include:
  --The President's general executive authority in Article II, 
        Section 1, of the Constitution;
  --His power as Commander in Chief of the Army and Navy in 
        Article II, Section 2, Clause 1;
  --The treaty clause itself for agreements, which might be 
        part of the process of negotiating a treaty in Article 
        II, Section 2, Clause 2;
  --His authority to receive Ambassadors and other public 
        Ministers in Article II, Section 3; and
  --His duty to ``take care that the laws be faithfully 
        executed'' in Article II, Section 3.
    Courts have indicated that executive agreements based 
solely on the President's independent constitutional authority 
can supersede conflicting provisions of state law, but opinions 
differ regarding the extent to which they can supersede a prior 
act of Congress. What judicial authority exists seems to 
indicate that they cannot.

 steps in the u.s. process of making treaties and executive agreements

    Phases in the life of a treaty include negotiation and 
conclusion, consideration by the Senate, Presidential 
ratification, implementation, modification, and termination. 
Following is a discussion of the major steps and the roles of 
the President and the Senate in each phase.
    Executive agreements are negotiated and concluded in the 
same way as treaties, but they do not go through the procedure 
for advice and consent of the Senate. Some executive agreements 
are submitted to the Congress for approval and most are to be 
transmitted to Congress after their conclusion. (See charts 1 
and 2.)
Negotiation and conclusion \9\
---------------------------------------------------------------------------
    \9\ See Chapter V for references and additional discussion.
---------------------------------------------------------------------------
    The first phase of treatymaking, negotiation and 
conclusion, is widely considered an exclusive prerogative of 
the President except for making appointments which require the 
advice and consent of the Senate. The President chooses and 
instructs the negotiators and decides whether to sign an 
agreement after its terms have been negotiated. Nevertheless, 
the Senate or Congress sometimes proposes negotiations and 
influences them through advice and consultation. In addition, 
the executive branch is supposed to advise appropriate 
congressional leaders and committees of the intention to 
negotiate significant new agreements and consult them as to the 
form of the agreement.
    Steps in the negotiating phase follow.
    (1) Initiation.--The executive branch formally initiates 
the negotiations. The original concept or proposal for a treaty 
on a particular subject, however, may come from Congress.
    (2) Appointment of negotiators.--The President selects the 
negotiators of international agreements, but appointments may 
be subject to the advice and consent of the Senate. 
Negotiations are often conducted by ambassadors or foreign 
service officers in a relevant post who have already been 
confirmed by the Senate.
    (3) Issuance of full powers and instructions.--The 
President issues full power documents to the negotiators, 
authorizing them officially to represent the United States. 
Similarly, he issues instructions as to the objectives to be 
sought and positions to be taken. On occasion the Senate 
participates in setting the objectives during the confirmation 
process, or Congress contributes to defining the objectives 
through hearings or resolutions.
    (4) Negotiation.--Negotiation is the process by which 
representatives of the President and other governments 
concerned agree on the substance, terms, wording, and form of 
an international agreement. Members of Congress sometimes 
provide advice through consultations arranged either by 
Congress or the executive branch, and through their statements 
and writings. Members of Congress or their staff have served as 
members or advisers of delegations and as observers at 
international negotiations.
    (5) Conclusion.--The conclusion or signing marks the end of 
the negotiating process and indicates that the negotiators have 
reached agreement. In the case of a treaty the term 
``conclusion'' is a misnomer in that the agreement does not 
enter into force until the exchange or deposit of 
ratifications. In the case of executive agreements, however, 
the signing and entry into force are frequently simultaneous.
Consideration by the Senate \10\
---------------------------------------------------------------------------
    \10\ See Chapter VI for references and additional discussion. 
Chapter VI also contains the text of Senate Rule XXX.
---------------------------------------------------------------------------
    A second phase begins when the President transmits a 
concluded treaty to the Senate and the responsibility moves to 
the Senate. Following are the main steps during the Senate 
phase.
    (1) Presidential submission.--The Secretary of State 
formally submits treaties to the President for transmittal to 
the Senate. A considerable time may elapse between signature 
and submission to the Senate, and on rare occasions a treaty 
signed on behalf of the United States may never be submitted to 
the Senate at all and thus never enter into force for the 
United States. When transmitted to the Senate, treaties are 
accompanied by a Presidential message consisting of the text of 
the treaty, a letter of transmittal requesting the advice and 
consent of the Senate, and the earlier letter of submittal of 
the Secretary of State which usually contains a detailed 
description and analysis of the treaty.
    (2) Senate receipt and referral.--The Parliamentarian 
transmits the treaty to the Executive Clerk, who assigns it a 
document number. The Majority Leader then, as in executive 
session, asks the unanimous consent of the Senate that the 
injunction of secrecy be removed, that the treaty be considered 
as having been read the first time, and that it be referred to 
the Foreign Relations Committee and ordered to be printed. The 
Presiding Officer then refers the treaty, regardless of its 
subject matter, to the Foreign Relations Committee in 
accordance with Rule XXV of the Senate Rules. (Rule XXV makes 
an exception only for reciprocal trade agreements.) At this 
point the treaty text is printed and made available to the 
public.
    (3) Senate Foreign Relations Committee action.--The treaty 
is placed on the committee calendar and remains there until the 
committee reports it to the full Senate. While it is committee 
practice to allow a treaty to remain pending long enough to 
receive study and comments from the public, the committee 
usually considers a treaty within a year or two, holding a 
hearing and preparing a written report.
    The committee recommends Senate advice and consent by 
reporting a treaty with a proposed resolution of ratification. 
While most treaties have historically been reported without 
conditions, the committee may recommend that the Senate approve 
a treaty subject to conditions incorporated in the resolution 
of ratification.
    (4) Conditional approval.--The conditions traditionally 
have been grouped into categories described in the following 
way.
  --Amendments to a treaty change the text of the treaty and 
        require the consent of the other party or parties. 
        (Note that in Senate debate the term may refer to an 
        amendment of the resolution of ratification, not the 
        treaty itself, and therefore be comprised of some other 
        type of condition.)
        [GRAPHIC] [TIFF OMITTED] T6922.001
        
        [GRAPHIC] [TIFF OMITTED] T6922.002
        
        [GRAPHIC] [TIFF OMITTED] T6922.003
        
  --Reservations change U.S. obligations without necessarily 
        changing the text, and they require the acceptance of 
        the other party.
  --Understandings are interpretive statements that clarify or 
        elaborate provisions but do not alter them.
  --Declarations are statements expressing the Senate's 
        position or opinion on matters relating to issues 
        raised by the treaty rather than to specific 
        provisions.
  --Provisos relate to issues of U.S. law or procedure and are 
        not intended to be included in the instruments of 
        ratification to be deposited or exchanged with other 
        countries.
    Whatever name a condition is given by the Senate, if a 
condition alters an international obligation under the treaty, 
the President is expected to transmit it to the other party. In 
recent years, the Senate on occasion has explicitly designated 
that some conditions were to be transmitted to the other party 
or parties and, in some cases, formally agreed to by them. It 
has also designated that some conditions need not be formally 
communicated to the other party, that some conditions were 
binding on the President, and that some conditions expressed 
the intent of the Senate.
    (5) Action by the full Senate.--After a treaty is reported 
by the Foreign Relations Committee, it is placed on the 
Senate's Executive Calendar and the Majority Leader arranges 
for the Senate to consider it. In 1986 the Senate amended Rule 
XXX of the Senate Rules, which governs its consideration of 
treaties, to simplify the procedure in this step. Still, under 
the full procedures of the revised Rule XXX, in the first stage 
of consideration the treaty would be read a second time and any 
proposed amendments to the treaty itself would be considered 
and voted upon by a simple majority. Usually the Majority 
Leader obtains unanimous consent to abbreviate the procedures, 
and the Senate proceeds directly to the consideration of the 
resolution of ratification as recommended by the Foreign 
Relations Committee.
    The Senate then considers amendments to the resolution of 
ratification, which would incorporate any amendments to the 
treaty itself that the Senate had agreed to in the first stage, 
as well as conditions recommended by the Foreign Relations 
Committee. Senators may then offer reservations, 
understandings, and other conditions to be placed in the 
resolution of ratification. Votes on these conditions, as well 
as other motions, are determined by a simple majority. Finally, 
the Senate votes on the resolution of ratification, as it has 
been amended. The final vote on the resolution of ratification 
requires, for approval, a two-thirds majority of the Senators 
present. Although the number of Senators who must be present is 
not specified, the Senate's practice with respect to major 
treaties is to conduct the final treaty vote at a time when 
most Senators are available. After approval of a controversial 
treaty, a Senator may offer a motion to reconsider which is 
usually laid on the table (defeated). In the case of a treaty 
that has failed to receive a two-thirds majority, if the motion 
to reconsider is not taken up, the treaty is returned to the 
Foreign Relations Committee. Prior to the final vote on the 
resolution of ratification, a Senator may offer a substitute 
amendment, proposing that the Senate withhold its advice and 
consent, or offer a motion to recommit the resolution to the 
Foreign Relations Committee.
    (6) Return to committee.--Treaties reported by the 
committee but neither approved nor formally returned to the 
President by the Senate are automatically returned to the 
committee calendar at the end of a Congress; the committee must 
report them out again in order for the Senate to consider them.
    (7) Return to President or withdrawal.--The President may 
request the return of a treaty, or the Foreign Relations 
Committee may report and the Senate adopt a simple resolution 
directing the Secretary of the Senate to return a treaty to the 
President. Otherwise, treaties that do not receive the advice 
and consent of the Senate remain pending on the committee 
calendar indefinitely.
Presidential action after Senate action \11\
---------------------------------------------------------------------------
    \11\ See Chapter VII for references and additional discussion.
---------------------------------------------------------------------------
    After the Senate gives its advice and consent to a treaty, 
the Senate sends it to the President. He resumes control and 
decides whether to take further action to complete the treaty.
    (1) Ratification.--The President ratifies a treaty by 
signing an instrument of ratification, thus declaring the 
consent of the United States to be bound. If the Senate has 
consented with reservations or conditions that the President 
deems unacceptable, he may at a later date resubmit the 
original treaty to the Senate for further consideration, or he 
may renegotiate it with the other parties prior to 
resubmission. Or the President may decide not to ratify the 
treaty because of the conditions or for any other reason.
    (2) Exchange or deposit of instruments of ratification and 
entry into force.--If he ratifies the treaty, the President 
then directs the Secretary of State to take any action 
necessary for the treaty to enter into force. A bilateral 
treaty usually enters into force when the parties exchange 
instruments of ratification. A multilateral treaty enters into 
force when the number of parties specified in the treaty 
deposit the instruments of ratification at a specified 
location. Once a treaty enters into force, it is binding in 
international law on the parties who have ratified it.
    (3) Proclamation.--When the instruments of ratification 
have been exchanged or the necessary number deposited, the 
President issues a proclamation that the treaty has entered 
into force. Proclamation serves as legal notice for domestic 
purposes and publicizes the text.
Implementation \12\
---------------------------------------------------------------------------
    \12\ See Chapter VIII for references and additional discussion.
---------------------------------------------------------------------------
    The executive branch has the primary responsibility for 
carrying out treaties and ascertaining that other parties 
fulfill their obligations after treaties and other 
international agreements enter into force, but the Senate or 
the entire Congress share in the following phases.
    (1) Implementing legislation.\13\--When implementing 
legislation or appropriations are needed to carry out the terms 
of a treaty, it must go through the full legislative process 
including passage by both Houses and presentment to the 
President.
---------------------------------------------------------------------------
    \13\ In addition to Chapter VIII, see Chapter X.
---------------------------------------------------------------------------
    (2) Interpretation.\14\--The executive branch interprets 
the requirements of an agreement as it carries out its 
provisions. U.S. courts may also interpret a treaty's effect as 
domestic law in appropriate cases. The Senate has made clear 
that the United States is to interpret the treaty in accordance 
with the common understanding of the treaty shared by the 
President and the Senate at the time the Senate gave its advice 
and consent. This common understanding is based on the text of 
the treaty, the provisions of the resolution of ratification, 
and the authoritative representations provided by the executive 
branch to the Senate during its consideration. The Senate has 
further specified that the United States is not to agree to or 
adopt an interpretation different from the common understanding 
except pursuant to Senate advice and consent or enactment of a 
statute.
---------------------------------------------------------------------------
    \14\ In addition to Chapter VIII, see Chapter VI, and discussion of 
INF Treaty in Chapter XI.
---------------------------------------------------------------------------
    (3) Settlement of international disputes.--When disputes 
arise between parties on the interpretation of a treaty or on 
the facts relating to compliance with the obligations of a 
treaty, the executive branch usually conducts negotiations 
aimed at resolving differences in interpretation. Treaties 
sometimes provide for formal procedures or mechanisms for 
dispute settlement. Members of Congress have sometimes played 
an important role by overseeing implementation of a treaty, 
bringing about public discussion of compliance issues, and 
urging procedures to resolve international disputes.
Modification, extension, suspension, or termination \15\
---------------------------------------------------------------------------
    \15\ See Chapter IX for references and additional discussion.
---------------------------------------------------------------------------
    Modifying and extending an international agreement amount 
to the making of a new agreement that should be done by the 
same method as the original agreement. For treaties, this means 
with the advice and consent of the Senate. Practice on 
termination, however, has not been consistent.
    (1) Modification.--At the international level, treaties are 
amended by agreement of the parties or in accordance with their 
terms. In the United States, amendments to treaties are 
ordinarily submitted to the Senate for its advice and consent, 
unless the treaty provides for modification in some other way. 
Less formal modifications have been made by executive 
agreements or decisions.
    (2) Extension.--An agreement to extend an existing 
international agreement is considered a new agreement, and 
ordinarily would be accomplished in the same fashion as the 
original, with an extension of a treaty submitted to the 
Senate.
    (3) Suspension.--The President conveys notice of suspension 
of a treaty and makes the determination that would justify 
suspension, such as a fundamental change in circumstances or 
material breach of a treaty by another party.
    (4) Termination.--At the international level, treaties 
often contain provisions regarding duration and the method of 
termination, or nations may terminate treaties by mutual 
consent. Grounds for termination include violation of the 
agreement, but violation does not automatically terminate a 
treaty.
    Domestically, the Constitution does not prescribe the 
process for the United States to terminate a treaty, and the 
process continues to be controversial. Treaties have been 
terminated in a variety of ways, including by the President 
following a joint resolution of Congress, by the President 
following action by the Senate, by the President and with 
subsequent congressional or Senate approval, and by the 
President alone.
Congressional oversight \16\
---------------------------------------------------------------------------
    \16\ See Chapter X for references and additional discussion.
---------------------------------------------------------------------------
    Congress has responsibility for overseeing the negotiation 
and conclusion of international agreements by the executive 
branch and the manner in which the executive branch interprets 
and carries out the agreements. It shares with the executive 
branch the responsibility for assessing the general 
effectiveness of international agreements at the international 
level and determining the course of action when agreements are 
not effective.
    (1) Hearings and reports.--Congress reviews actions under 
treaties and other international agreements as part of its 
responsibilities for overseeing executive branch activities. 
Senate and House rules direct committees to review the 
application of those laws within their jurisdiction, so the 
oversight function is distributed widely among the various 
committees of Congress. Methods for oversight include hearings, 
investigations, consultations, and requiring and reviewing 
reports.
    (2) Review of executive agreements.--Under the Case-
Zablocki Act, all executive agreements are to be transmitted to 
Congress within 60 days of their entry into force, including 
those that are classified for security reasons. The receipt is 
noted in the Congressional Record, and unclassified agreements 
are listed in committee publications. Members of Congress may 
read the agreements in the Senate Foreign Relations and House 
Foreign Affairs Committee offices.

                trends in senate action on treaties \17\
---------------------------------------------------------------------------

    \17\ See Chapter VI and Chapter XI for references and additional 
discussion.
---------------------------------------------------------------------------
    In recent years the Senate has endeavored both to improve 
its efficiency in handling treaties and to assure a meaningful 
role. Among steps to streamline procedures, in 1986 it amended 
Senate Rule XXX to eliminate the requirement for consideration 
by the Senate as in Committee of the Whole. It has frequently 
approved groups of treaties with a single roll call vote, or 
approved treaties by a division vote. The Senate Legis computer 
system has made it easier for Senators to obtain current 
information on action on treaties before the Senate.
    Among steps to assure a meaningful role, the Senate has 
appointed observer groups to negotiations on important 
treaties, especially in the arms control and environmental 
areas. In 1987 and 1988 the Senate reviewed the constitutional 
principles of treaty interpretation and affirmed that the 
United States should not agree to or adopt an interpretation 
different from the common understanding shared by the President 
and the Senate at the time the Senate gave its advice and 
consent to ratification, except pursuant to Senate advice and 
consent or enactment of a statute. The Senate also provided a 
system to review the negotiating record of the Intermediate 
Range Nuclear Forces (INF) Treaty. However, the Foreign 
Relations Committee said that Senate review of negotiating 
records should not become an institutionalized procedure, but 
that reference to the record on a case-by-case basis might 
sometimes be useful.
    Treaties and Senate action on them have begun to reflect 
new policy concerns since the end of the Cold War. Increased 
recognition has been given to the importance of economic 
treaties, including consular, investment, and tax agreements. 
The use of friendship, commerce, and navigation (FCN) treaties 
decreased after 1948 when the United States entered the General 
Agreement on Tariffs and Trade (GATT). Since investment matters 
were outside the scope of GATT at that time, in 1981 the United 
States began to negotiate a series of bilateral investment 
treaties (BITs). Subsequently, the Senate has given its advice 
and consent to BITs with several countries.
    Treaties providing for cooperation in bringing suspected 
criminals to trial have become increasingly important with the 
growth of transnational criminal activity, including narcotics 
trafficking, terrorism, money laundering, and export control 
violations. The two chief types are extradition treaties and a 
new series called mutual legal assistance treaties (MLATs). The 
Senate Foreign Relations Committee has supported recent 
supplementary extradition treaties and new MLATs, although 
sometimes with conditions.
    Treaties for conservation of certain species of wildlife 
and regulation of fisheries have been supplemented with broad 
treaties for environmental cooperation. Although supportive of 
environmental cooperation treaties, the Senate Foreign 
Relations Committee has expressed concern about articles 
prohibiting reservations and has cautioned that consent to 
three multilateral environmental treaties containing such 
articles should not be construed as a precedent.

         B. Issues in Treaties Submitted for Advice and Consent

    Although it can prevent a treaty from being ratified or 
attach conditions for ratification, the Senate frequently finds 
it difficult to advise on treaties effectively. Several 
obstacles to a meaningful Senate role have developed.

           request for consent without opportunity for advice

    A major problem derives from the executive branch practice 
of not submitting a treaty to the Senate until it is completed. 
Seeing the terms of the treaty only after it has been signed, 
the Senate frequently has little choice in practice except to 
consent to a treaty exactly as it has been negotiated, or to 
block it entirely. The President may present a treaty as vital 
to good relations with a nation, relations that would be set 
back immeasurably if the treaty were defeated. Or he may 
present it as a package that has been so delicately negotiated 
that the slightest change in understanding by the Senate would 
unbalance the package and kill the treaty. Or he may present it 
so late in the congressional session, or so near some type of 
international deadline, that Senate consideration in depth is 
pictured as impeding the beginning of a new beneficial regime.
    Administrations almost always discourage significant 
changes that might require renegotiation of a treaty, and the 
Senate usually defeats attempted reservations that would 
actually alter treaty obligations. Rather than adding 
reservations or attempting to amend the treaty itself, the 
Senate often addresses its concerns through understandings that 
do not alter the obligations under the treaty and therefore do 
not require renegotiation.
    The Senate has the choice of rejecting a treaty by a public 
vote, or by quietly not bringing the treaty to a vote. In 
recent years it has almost always chosen not to conduct a vote 
that might embarrass the U.S. negotiators, make the United 
States appear divided, and impair relations with other 
countries. In either event, Senate defeat of a treaty entails a 
loss of the time, energy, and in some cases U.S. international 
prestige invested in the negotiations.
    An option for avoiding defeats is legislative-executive 
consultation prior to or during negotiations. The President can 
initiate consultation through meetings or by inviting 
congressional observers to negotiations. The Senate can 
initiate consultation through hearings and other meetings or 
through resolutions or legislative directives. In the past, 
some Senators have been concerned that participating in the 
formulation of a treaty could pose a conflict of interest since 
Senators are subsequently asked to pass judgment on the 
completed treaty. With the increase in multilateral treaties 
and other developments, this concern appears to have 
diminished.

                         multilateral treaties

    The Senate's problem of not receiving a treaty until it is 
completed is particularly acute in multilateral treaties. These 
treaties are often negotiated by many nations in large 
international conferences, sometimes over a period of years. 
States make concessions in one area to obtain concessions from 
other states in other areas. The result is often an interwoven 
package that the Senate is called upon to take or leave in its 
entirety, without amendments or reservations, because 
renegotiation may not be feasible.
    Some multilateral treaties have contained an article 
prohibiting reservations. The Senate Foreign Relations 
Committee has taken the position that the executive branch 
negotiators should not agree to this prohibition. The Senate 
has given its advice and consent to a few treaties containing 
the prohibition, but the committee has stated that approval of 
these treaties should not be construed as a precedent for such 
clauses in future treaties. It has further stated that the 
President's agreement to such a clause could not constrain the 
Senate's right and obligation to attach reservations to its 
advice and consent.\18\
---------------------------------------------------------------------------
    \18\ See section on Environmental Treaties in Chapter XI.
---------------------------------------------------------------------------
    A related problem arises from reservations made by other 
nations to a multilateral treaty. Although the reservations may 
modify international obligations, the Department of State has 
not been sending the reservations to the Senate for its advice 
and consent. It has been assumed that the Senate, aware of this 
practice, tacitly consents to the U.S. acceptance of the 
reservations.\19\ Without information on the reservations, 
however, the Senate cannot estimate the size or significance of 
the problem.
---------------------------------------------------------------------------
    \19\ See section on Amendment in Chapter IX.
---------------------------------------------------------------------------
    The trend toward more multilateral agreements seems 
inevitable. The United States entered virtually no multilateral 
agreements until the late 1800s, but after 1900 multilateral 
treaties steadily increased and their subject coverage 
expanded. From 1980 through 1991 the United States entered 259 
multilateral agreements of which 79 were treaties. For the 
future, with the number of sovereign nations still growing, 
multilateral agreements on a subject offer an efficient 
alternative to bilateral agreements with 100 or 200 countries.
    The great increase in multilateral diplomacy and 
multilateral agreements is introducing another new phenomenon. 
The United States now has bilateral international agreements 
with approximately 50 international organizations. It might 
appear that the Senate would encounter the same difficulty in 
proposing modifications it does in the case of multilateral 
agreements. Renegotiation of bilateral treaties with 
multilateral organizations should be more feasible, however, 
because the United States is one of only two negotiating 
partners. Moreover, the United States is in most instances also 
a major player in the international organization, the other 
negotiating partner.

    diminishing use of treaties for major political commitments \20\
---------------------------------------------------------------------------

    \20\ See Chapter XI for references and additional discussion.
---------------------------------------------------------------------------
    At the end of World War II, treaties played an important 
part in shaping post-war U.S. foreign policy. Formal peace 
treaties were concluded with all belligerents except Germany. 
The Charters of the United Nations and the Organization of 
American States established a framework for international 
cooperation. The North Atlantic Treaty and other regional 
security treaties built a network of mutual security that 
endured throughout the Cold War.
    After 1955 the building of commitments through treaties 
appeared to halt, and many in Congress expressed concern with 
commitments made through executive action. In 1969 the Senate 
adopted the National Commitments Resolution expressing the 
sense that a national commitment ``results only from 
affirmative action taken by the executive and legislative 
branches of the U.S. Government by means of a treaty, statute, 
or concurrent resolution of both Houses of Congress 
specifically providing for such commitment.'' Yet for the rest 
of the Cold War, military and security commitments were not 
made as treaties but as executive agreements, non-binding 
political agreements, or unilateral executive branch statements 
and actions.
    Arms control treaties became the only type of agreement in 
the political-military field that have been concluded primarily 
in treaty form. In this area legislation specified that 
agreements be concluded as treaties or authorized by 
legislation, and the Senate insisted that most agreements be 
submitted as treaties. As a result, arms control treaties have 
been the main vehicle in recent years for special Senate 
influence on foreign policy.
    The end of the Cold War offers a new era in foreign policy 
comparable to that which existed at the end of World War II. As 
the agreements to provide the framework for the new era are 
concluded, the significance of the Senate's treaty power is 
again being tested. Some agreements to shape the new foreign 
policy already have been undertaken by executive agreement, 
non-binding political agreement, or unilateral executive branch 
statements or actions. In other cases, the Senate has insisted 
that agreements be concluded as treaties. Such insistence 
appears to have become necessary to ensure that significant 
political agreements are submitted as treaties.

    unilateral executive branch action to reinterpret, modify, and 
                           terminate treaties

    The Constitution is silent on procedures for modifying or 
terminating treaties, and agreement has not been reached 
between the branches on a single proper mode.\21\ The general 
rule is that international agreements are to be amended in the 
same way that they were made, thus for treaties requiring the 
advice and consent of the Senate. With the increase in numbers 
and complexity of treaties, more frequent changes and 
adjustments have become necessary. The Senate has again been 
challenged to be vigilant for unilateral executive branch 
action that might change a basic obligation agreed to in its 
advice and consent to a treaty.
---------------------------------------------------------------------------
    \21\ See Chapter IX for references and additional discussion.
---------------------------------------------------------------------------
    What portion of treaty modifications have been submitted to 
the Senate is unknown. Although certain changes have been 
routinely submitted to the Senate, such as amendments to tax 
treaties, others have been made solely by executive agreement 
or action. The most controversial unilateral action of the 
executive branch in recent years involved reinterpretation of 
the Anti-Ballistic Missile (ABM) Treaty of 1972. In 1985, the 
Reagan Administration sought to reinterpret the ABM Treaty to 
permit development of mobile space-based anti-ballistic systems 
for the Strategic Defense Initiative. The Senate became 
concerned about both the future of the ABM Treaty and the 
failure to obtain its advice and consent for a major change in 
treaty obligations. It attached a condition to the INF Treaty 
restating the principle that the President may not adopt a 
treaty interpretation different from the common understanding 
shared by the Senate at the time it gave its advice and 
consent, without the advice and consent of the Senate or the 
enactment of a statute. In action on subsequent arms control 
treaties, the Senate affirmed the applicability of these 
principles to all treaties. In 1993 the Clinton Administration 
made clear it had returned to the ``narrow'' or ``traditional'' 
interpretation of the ABM Treaty.\22\
---------------------------------------------------------------------------
    \22\ See Chapters VI, VIII, and IX for references and additional 
discussion.
---------------------------------------------------------------------------
    Twice in recent years the method of terminating a treaty 
has raised serious controversy within the United States. In 
1978, President Carter terminated the defense treaty with the 
Republic of China without the concurrence of either the Senate 
or Congress when he established diplomatic relations with the 
People's Republic of China. In 1977, the new Panama Canal 
Treaty terminated the 1903, 1936, and 1955 treaties with 
Panama. Although a new treaty was approved by the Senate, some 
contended that the termination of the earlier treaties required 
an act of Congress, thus including approval by the House of 
Representatives as well as the Senate.

                 difficulty in overseeing treaties \23\
---------------------------------------------------------------------------

    \23\ See Chapter X for references and additional discussion.
---------------------------------------------------------------------------
    Once it has given its advice and consent to a treaty, the 
Senate often lacks the information necessary to oversee further 
action under the treaty. It does not receive a copy of the 
resolution of ratification signed by the President, or the 
proclamation, to enable comparison with the resolution of 
ratification adopted by the Senate. It does not receive copies 
of reservations or conditions established by other parties, to 
enable a determination of whether the advice and consent of the 
Senate should have been required. It is not always informed 
when a treaty has entered into force or been modified in some 
way. Completion by the Department of State of a computerized 
information system on treaties, with Senate access, might 
enable the Senate to oversee some aspects of the implementation 
of treaties more effectively.
    Compliance with treaties has also become an issue on some 
occasions, especially in the arms control field. Oversight of 
compliance has been done with traditional congressional tools 
such as hearings, investigations, and required reports.

                             minority power

    Questions are sometimes raised because of the power of a 
minority to block a treaty. Since a two-thirds majority of the 
Senators present is required to advise and consent to a treaty, 
a minority of one-third plus one of the Senate may reject a 
treaty. In some cases Senators in the minority seem to have 
more influence on a treaty or the substance of future policy 
than other Senators because those in the minority can win 
concessions. The President may be certain of the support of a 
simple majority; he must make special concessions to win the 
extra votes necessary for a two-thirds majority. Nevertheless, 
a two-thirds majority was clearly the intention of the Framers 
of the Constitution, and any formal change would require a 
constitutional amendment.

                       the house role in treaties

    Because treaties become part of the law of the land, 
concern is sometimes expressed that the House of 
Representatives does not share in the treaty power. The Framers 
confined the treatymaking power to the President and the Senate 
in the belief that the latter's smaller size would enable it to 
be a confidential partner in the negotiations. The need for 
maintaining secrecy during negotiations and acting with speed 
were also cited as justifications for not including the House. 
In addition, by making the treaty power a national power and 
requiring the advice and consent of the Senate, the Framers 
gave expression to their desire to form a strong central 
government while affording the states ample safeguards.
    The Supreme Court, in INS v. Chadha, cited the Senate's 
power to advise and consent to treaties negotiated by the 
President ``as one of only four provisions in the Constitution, 
explicit and unambiguous, by which one House may act alone with 
the unreviewable force of law, not subject to the President's 
veto.'' \24\ In 1945 the House adopted a resolution to amend 
the Constitution to require the advice and consent of both 
Houses for treaties, but the Senate did not act on the 
measure.\25\
---------------------------------------------------------------------------
    \24\ 462 U.S. 919 (1983).
    \25\ H.J. Res. 60, Congressional Record (1945), pp. 4326-4368.
---------------------------------------------------------------------------
    The House from the beginning has played a role in treaties 
that require implementing legislation. On occasion, as in 1796 
with the Jay Treaty, problems have arisen when Presidents have 
completed ratification of treaties and then called upon 
Congress to pass implementing legislation to prevent the United 
States from defaulting on its international obligations. 
Treaties approved by the Senate have sometimes remained 
unfulfilled for long periods because implementing legislation 
was not passed.
    The increasing use of congressional-executive agreements 
has also equalized to some extent the role of the House vis-a-
vis the Senate in the making of international agreements. 
Executive agreements authorized or approved by legislation give 
a majority in the House and Senate the power analogous to the 
Senate's advice and consent by a two-thirds majority.

                vienna convention on the law of treaties

    A pending issue for the Senate is what action to take on 
the Vienna Convention on the Law of Treaties, a codification of 
the international law of treaties which is increasingly cited 
as a source of international law, even though the United States 
has not yet ratified it. The United States played a leading 
role in negotiating the Vienna Convention at a conference of 
more than 100 nations and signed it with almost 50 other 
countries on May 23, 1969. As in the case of many treaties, 
however, the executive branch conducted the negotiations 
without congressional observers or consultations, although the 
subject matter was of clear concern to the Senate.
    The convention was signed by the United States on May 23, 
1969, and submitted to the Senate on November 7, 1971. The 
Senate Foreign Relations Committee ordered reported a 
resolution of advice and consent to ratification, subject to an 
understanding and an interpretation, on September 7, 1972, but 
the Department of State and the Senate Foreign Relations 
Committee could not agree on acceptable conditions and the 
convention remains pending on the Foreign Relations Committee 
calendar.\26\
---------------------------------------------------------------------------
    \26\ See section on the Vienna Convention on the Law of Treaties in 
Chapter III. The text of the Vienna Convention is contained in Appendix 
5.
---------------------------------------------------------------------------
    The main dilemma is that simple ratification would leave 
unresolved important constitutional issues relating to 
executive agreements. The Vienna Convention codifies an 
international law definition of treaties that makes no 
distinction between different forms of international 
agreements. Article 46 permits a state to invalidate a treaty 
if a violation of domestic law in concluding the treaty was 
``manifest and concerned a rule of its internal law of 
fundamental importance.'' In 1972, however, the Department of 
State objected to the interpretation proposed by the Senate 
Foreign Relations Committee that it was ``a rule of internal 
law of the United States of fundamental importance'' that no 
treaty as defined by the convention would be valid unless it 
had received the advice and consent of the Senate or its terms 
had been approved by law.
    The second problem is that, although the United States has 
traditionally supported the progressive codification of 
international law, in a few instances the Vienna Convention 
formally codifies rules of international law that may not have 
been fully accepted as customary law by the United States. In 
particular, the Vienna Convention provides that an 
international agreement is void if it conflicts with a 
fundamental norm of general international law ``accepted and 
recognized by the international community of States as a whole 
as a norm from which no derogation is permitted * * *.'' The 
United States in principle does not object to this concept 
known as jus cogens, but the convention does not state by whom 
or how such norms are established.
    Furthermore, the Vienna Convention provides that if a 
treaty dispute relating to jus cogens is not resolved within 12 
months, any party may invoke the jurisdiction of the 
International Court of Justice unless the parties agree to 
submit it to arbitration. While the United States has entered a 
number of treaties providing for submission of disputes to the 
International Court of Justice, unqualified Senate approval of 
the Vienna Convention would appear to broaden significantly 
U.S. acceptance of the court's jurisdiction, a matter which has 
long been controversial. The United States withdrew its 
declaration accepting the court's compulsory jurisdiction on 
October 7, 1985. Moreover, in approving some treaties with 
provisions for submission of disputes to the International 
Court of Justice, the Senate has added conditions. In giving 
its advice and consent to the Genocide Convention, the Senate 
added a reservation that before any dispute to which the United 
States was a party could be submitted to the jurisdiction of 
the International Court of Justice, the specific consent of the 
United States was required in each case.

          C. Issues in Agreements Not Submitted to the Senate

    Any problems the Senate has in influencing treaties pale in 
comparison with problems in influencing many other 
international agreements entered into by the United States. For 
sole executive agreements, many executive agreements entered 
into under the authority of a treaty, and non-legally binding 
or political agreements, the Senate (and Congress as a whole) 
often have little timely knowledge and no opportunity to change 
them or prevent them from taking effect. An exception is the 
category of congressional-executive agreements that are 
authorized by Congress in legislation with procedures for 
congressional review and approval. The problem is one of both 
quantity and quality. The number of agreements not submitted to 
the Senate as treaties has risen sharply while the number of 
treaties has remained steady. At the same time, the subject 
matter coverage of executive agreements has expanded and their 
significance increased.

              increasing use of executive agreements \27\
---------------------------------------------------------------------------

    \27\ See Chapter II for references and additional discussion.
---------------------------------------------------------------------------
    As the United States became more involved in world affairs, 
international agreements multiplied. Most of the growth was in 
executive agreements. The executive branch found it was much 
easier to conclude an executive agreement than a treaty because 
it was not submitted to the Senate. (Compare charts 1 and 2 
above.) The Senate, too, accepted executive agreements as an 
alternate method of making many international agreements, since 
submitting all agreements to the Senate as treaties would 
either overwhelm the Senate with work or force approval to 
become perfunctory.
    Of most concern to the Senate were executive agreements 
concluded solely on the President's own authority, without any 
influence from Congress. In other executive agreements, the 
Senate played a role anyway. In the case of executive 
agreements concluded under the authority of a treaty, the 
Senate consented to the original treaty. In the case of 
congressional-executive agreements, both Houses passed the 
legislation that authorized, required scrutiny of, or approved 
the agreements.

     oversight of executive agreements--the case-zablocki act \28\
---------------------------------------------------------------------------

    \28\ See Chapter X for references and additional discussion. The 
text of the Case-Zablocki Act is contained in Appendix 2.
---------------------------------------------------------------------------
    To help in oversight of executive agreements, in 1972 the 
Case-Zablocki Act was enacted. This Act (1 U.S.C. 112b), 
usually referred to as the Case Act, requires the Secretary of 
State to transmit to Congress all executive agreements, 
including oral agreements which are to be reduced to written 
form, within 60 days after their entry into force. If the 
President deems that the immediate disclosure of an agreement 
would be prejudicial to national security, the agreement is to 
be transmitted to the Senate Foreign Relations and House 
International Relations Committees with a security 
classification.
    The Case Act has proved helpful in informing Congress of 
executive agreements and has provided machinery for additional 
oversight. If fully complied with by the executive branch and 
utilized by Members of Congress, a system exists for Congress 
to learn of executive agreements and to determine the adequacy 
of their authorization.

                    learning of executive agreements

    The first problem dealt with by the Case Act was 
determining when executive agreements have been concluded. In 
the past, Presidents have entered into agreements secretly, as 
evidenced by the Yalta Agreement of 1945 and the Cuban missile 
crisis of 1962. The Case Act requires the State Department to 
send Congress copies of executive agreements. In most cases the 
agreements are submitted within the required 60 days after 
their entry into force, but some are submitted late. While the 
fact that the agreements have already entered into force means 
that Congress cannot prevent them from taking effect, timely 
knowledge does permit Congress an opportunity to consider the 
policy represented by the agreement and to use legislative 
means to modify the policy if it wishes.
    The Case Act has also helped the Department of State, as 
well as Congress, learn of and have some supervision over 
agreements made by agencies of the Government other than the 
State Department. The Case Act requires any department or 
agency that enters an international agreement to transmit the 
agreement to the Department of State within 20 days. In 
addition, it prohibits any international agreement from being 
signed or otherwise concluded on behalf of the United States 
without prior consultation with the Secretary of State. Such 
consultation may cover a class of agreements rather than each 
individual agreement.
    U.S. agencies frequently make contracts and arrangements 
with agencies in other countries. The Secretary of State 
determines for the executive branch whether an arrangement 
constitutes an international agreement required to be 
transmitted to Congress under the Case Act. Members and 
committees of Congress do not want to be deluged with trivia, 
yet they want to be sure to receive important agreements. One 
decision taken to this end by the Secretary of State with 
congressional concurrence was to exclude agreements made by the 
Agency for International Development to provide funds of less 
than $25 million for a foreign project, unless the agreement 
was otherwise significant.

             determining authority for executive agreements

    A basic concern of the Senate has been whether an executive 
agreement is properly within the authority of a treaty or 
statute. In 1973, in implementing the Case Act, the Department 
of State agreed to send with each executive agreement 
transmitted to Congress a background statement on the agreement 
that would include a precise citation of legal authority. 
Checking these citations could help the Senate distinguish 
between those agreements that are within the authority of a 
treaty or statute and those it would consider sole executive 
agreements. In recent years, however, a majority of agreements 
have been transmitted without such background statements.

               non-binding international agreements \29\
---------------------------------------------------------------------------

    \29\ See Chapters III and X for references and additional 
discussion.
---------------------------------------------------------------------------
    Some international agreements are not intended to be 
legally binding, and these non-binding agreements may escape 
regular congressional oversight procedures. Sometimes called 
political agreements, these agreements are not considered 
treaties under international law. They are not enforceable in 
courts, and rules concerning compliance, modification, and 
withdrawal from treaties do not apply. Nevertheless, these 
agreements may be considered morally binding by the parties, 
and the President may be making a type of national commitment 
when he enters one. Moreover such agreements are occasionally 
later converted into legally binding agreements.
    Non-binding agreements are not new. Presidents have often 
made mutual declarations and agreed on final acts and 
communiques after international meetings. Recently some non-
binding agreements appear to have become quite formal, however, 
assuming all the characteristics of a treaty except for a 
statement that they are politically, not legally, binding. 
Agreements under the Conference on Security and Cooperation in 
Europe (CSCE) are an example.
    Since non-binding agreements are not submitted to the 
Senate as treaties and are not transmitted to Congress as 
executive agreements under the Case-Zablocki Act, Congress may 
need to learn of the agreements and oversee them through other 
methods. In the case of the CSCE agreements, Congress has 
carried out vigorous oversight through the Commission on 
Security and Cooperation in Europe.

         D. Deciding Between Treaties and Executive Agreements

    The crux of the problem is determining when international 
agreements should be concluded as treaties and when they should 
be executive agreements. For what subjects is it essential to 
use the treaty process? For what subjects are executive 
agreements appropriate?

   scope of the treaty power; proper subject matter for treaties \30\
---------------------------------------------------------------------------

    \30\ See Chapters III and IV for references and additional 
discussion.
---------------------------------------------------------------------------
    The treaty power is recognized by the courts as extending 
to any matter properly the subject of international 
negotiations. In practice the subject matter dealt with by 
international negotiations has steadily expanded, particularly 
in the last half century, with new forms of international 
cooperation in political, military, economic, and social 
fields.
    From time to time concern has been expressed that treaties 
could have adverse implications for, or the effect of changing, 
domestic law. For example, the negotiation of human rights 
treaties under the auspices of the United Nations raised 
concern in the 1950s that some clauses, if ratified by the 
United States, might be in conflict with constitutional 
provisions safeguarding human rights, or that matters clearly 
in the domestic jurisdiction of the United States could be 
changed into matters of international concern. Other concerns 
were that some national powers might be transferred to an 
international organization, or that powers traditionally 
reserved to the states could be invaded by transferring them to 
the Federal Government or international bodies.
    Despite its breadth, the treaty power has certain 
limitations in addition to the procedural safeguard of the 
requirement for the Senate's advice and consent. Chief among 
these is that treaties, like laws, are subject to the 
requirements of the Constitution. Controversial constitutional 
issues involving treaties include:
    (1) Rights reserved to the states.--While it seems settled 
that the unspecified reserved powers of the 10th amendment are 
not a bar to exercise of the treaty power, specific powers 
conferred on states arguably might provide restrictions.
    (2) Subjects in which the Constitution gave participation 
to the House of Representatives.--Powers delegated to Congress 
are not a limitation on subject matter which can be embraced by 
a treaty, but for many treaties, domestic effectiveness may 
depend on implementing legislation.
    (3) Authorizations of U.S. participation in proceedings 
before certain types of international judicial tribunals.--The 
Constitution's vesting of the judicial power in one Supreme 
Court and such inferior courts as Congress might establish 
provides a safeguard against infringement by treaty on the 
domestic judicial power.
    (4) Matters of domestic jurisdiction, not of international 
concern.--While there is no clear test of what matters are of 
international concern, the existence of such limitations 
appears to be generally accepted.
    (5) Separation of powers and rights under the Bill of 
Rights.--As a general matter, an agreement cannot alter the 
constitutional distribution of powers or impair 
constitutionally protected rights.

  scope of executive agreements; proper subject matter for executive 
                            agreements \31\
---------------------------------------------------------------------------

    \31\ See Chapter IV for references and additional discussion.
---------------------------------------------------------------------------
    The extent to which executive agreements can be utilized 
instead of treaties is perhaps the fundamental question in 
studying the Senate role in treaties, and is by no means wholly 
resolved.
    Congressional-executive or statutory agreements, authorized 
or approved by legislation, would appear to have the broadest 
constitutional basis. They have been used for such important 
subjects as joining international organizations, and the Senate 
in legislation has endorsed their possible use for arms control 
agreements and the making of national commitments.
    Many legal scholars consider statutory agreements 
interchangeable with treaties as a method of making 
international agreements. Some might even argue that because 
they require approval of both Houses of Congress, statutory 
agreements might be more appropriate for those questions which 
affect domestic law than treaties, which are considered only by 
the Senate. When implementing legislation is required, they are 
an efficient device because the approval of the agreement and 
the necessary legislation may be accomplished in a single step.
    Others might argue that to use congressional-executive 
agreements instead of treaties, while preserving the 
congressional role, could lead to erosion of the treaty power. 
Not only would it circumvent the method set out in the 
Constitution that deliberately made entering treaties more 
difficult than passing legislation, but it would indirectly 
reduce the influence of states whose interests were seen to be 
protected by requiring a two-thirds majority of the Senators 
voting. Some may object to the use of statutory agreements 
instead of treaties, when initiated by the executive branch, on 
the grounds that it allows the executive branch to pick and 
choose between the two methods of making international 
agreements according to the better prospects for approval; they 
may not object if Congress specifically authorizes such an 
agreement.
    The other two types of international agreements have 
narrower limits but pose other problems. Executive agreements 
pursuant to treaties are supposed to be within the purview of 
the treaty, that is, carry out the purposes of the treaty. Sole 
executive agreements are supposed to be within the President's 
independent executive powers under Article II of the 
Constitution. However, the extent of the ``purview of the 
treaty'' and the President's independent powers raise 
judgmental matters subject to varying interpretations.

                     criteria for treaty form \32\
---------------------------------------------------------------------------

    \32\ See Chapter X.
---------------------------------------------------------------------------
    A perennial concern of Senators has been to insure that the 
most important international commitments are made as treaties 
rather than executive agreements. There have been recurrent 
complaints that some agreements of major significance, such as 
agreements to establish military bases, were not submitted to 
the Senate as treaties.
    Procedures for consultation between the executive branch 
and Congress on the form of prospective international 
agreements, primarily whether they should be treaties submitted 
to the Senate, were developed in 1978 after the Senate passed 
the International Agreements Consultation Resolution suggesting 
that such consultation should occur. These procedures include 
State Department consultation with appropriate congressional 
committees in advance of negotiations. In addition, the 
Department is periodically to send the Senate Foreign Relations 
and House International Relations Committees a list of 
significant international agreements that it has authorized for 
negotiation. Congress can use the information provided as the 
basis for discussions with the Department of State, or possibly 
take more action, on the form an agreement should ultimately 
take.
    The State Department has developed the following criteria 
for determining whether an agreement should be a treaty:
    (1) The degree of commitment or risk for the entire Nation;
    (2) Whether the agreement is intended to affect state laws;
    (3) Whether the agreement requires enabling legislation;
    (4) Past U.S. practice;
    (5) The preference of Congress;
    (6) The degree of formality desired;
    (7) The proposed duration and the need for prompt 
conclusion; and
    (8) General international practice on similar agreements.
    When there is a question as to whether an agreement should 
be concluded as a treaty or executive agreement, State 
Department procedures call for consultation with congressional 
leaders and committees as may be appropriate. Fuller use of 
these and other consultation procedures appear to offer the 
most opportunity for assuring appropriate decisions, from the 
Senate's perspective, on whether particular international 
agreements should be concluded as executive agreements, 
congressional-executive agreements, or treaties.


  II. HISTORICAL BACKGROUND AND GROWTH OF INTERNATIONAL AGREEMENTS \1\
---------------------------------------------------------------------------

    \1\ Prepared by Louis Fisher, Senior Specialist in Separation of 
Powers.
---------------------------------------------------------------------------
                              ----------                              

    The Framers of the Constitution expected the Senate to 
serve as a council of advice to the President on treaty 
matters, participating during the negotiation stage through the 
end of the treatymaking process. The experience of President 
George Washington in 1789, in meeting with Senators to discuss 
the terms of a treaty to be negotiated with the Southern 
Indians, proved discouraging to both branches. Although no 
President again met with Senators in the Senate Chamber to 
discuss a proposed treaty, other methods were used to include 
Senators in the treaty-drafting process. The Senate's role 
evolved into a more formal pattern of passing judgment on 
completed treaties, approving or not approving them, or 
approving them with conditions that the President must accept 
if he ratifies them.
    Senate action on treaties has changed dramatically, 
particularly since World War II. While the number of treaties 
concluded each year has remained fairly constant, the number of 
international agreements other than treaties has skyrocketed. 
Moreover, a growing proportion of treaties are now multilateral 
rather than bilateral, and the subject matter of treaties and 
other international agreements continues to diversify. All of 
these changes challenged the Senate in maintaining its 
constitutional role.

         A. Historical Background of Constitutional Provisions

    Four provisions of the Constitution expressly relate to 
treaties and form the basis of U.S. law on treaties. By making 
treaties the supreme law of the land and dividing the 
treatymaking power between the President and the Senate, the 
Constitution makes treaties uniquely important and difficult 
for the United States.
    Article I, Section 10, expressly prohibits states from 
entering into ``any Treaty, Alliance, or Confederation,'' nor 
may any state, without the consent of Congress, enter into any 
agreement or compact or agreement with another state or with a 
foreign nation.
    Article II, Section 2, Clause 2, states that the President 
``shall have Power, by and with the Advice and Consent of the 
Senate, to make Treaties, provided two-thirds of the Senators 
present concur.''
    Article III, Section 2, Clause 1, provides: ``The judicial 
Power shall extend to all Cases, in Law and Equity, arising 
under this Constitution, the Laws of the United States, and 
Treaties made, or which shall be made, under their Authority; * 
* *''
    Article VI, Section 2, includes treaties among the supreme 
law of the land: ``This Constitution, and the Laws of the 
United States which shall be made in Pursuance thereof; and all 
Treaties made, or which shall be made, under the Authority of 
the United States, shall be the supreme Law of the Land; and 
the Judges in every State shall be bound thereby, any Thing in 
the Constitution or Laws of any State to the Contrary 
notwithstanding.''
    The background and records of the Constitutional Convention 
of 1787 and early writings and practice help reveal the 
intentions, concerns, and assumptions of the Drafters of the 
Constitution.

                     the constitutional convention

    The Articles of Confederation, completed in 1777 but not 
ratified until 1781, formed the basis of the relationship among 
the 13 colonies until superseded by the Constitution in 1789. 
The Continental Congress was the only central organ of the 
Confederation. The Articles vested in ``the united states in 
congress assembled'' the power to enter into treaties and 
alliances, ``provided that no treaty of commerce shall be made 
whereby the legislative power of the respective states shall be 
restrained from imposing such imposts and duties on foreigners, 
as their own people are subjected to, or from prohibiting the 
exportation or importation of any species of goods or 
commodities whatsoever * * *.'' Congress, a single body 
composed of delegates from each state, required the assent of 
nine states for a treaty.The main problem concerning treaties 
under the Articles was in securing agreement to make treaty 
provisions binding on all the states.
    At the Philadelphia Convention in 1787, a number of 
proposals were put forth to replace the Articles of 
Confederation. It was generally agreed that the single branch 
of the Continental Congress would be replaced by three 
branches: legislative, executive, and judicial. Well into 
August, the delegates agreed to give the Senate the exclusive 
power to make treaties and appoint ambassadors.\2\ Opposition 
developed, however. On August 15, John Mercer of Maryland 
objected to lodging the treatymaking power in the Senate, 
contending that it belonged to the executive department, adding 
that treaties ``would not be final so as to alter the laws of 
the land, till ratified by legislative authority.'' \3\ On 
August 23, James Madison pointed out that the Senate 
represented the states alone and that for ``this as well as 
other obvious reasons it was proper that the President should 
be an agent in Treaties.'' \4\
---------------------------------------------------------------------------
    \2\ The Records of the Federal Convention of 1787, at 143, 144-45, 
155, 392 (Max Farrand ed. 1937) (hereafter cited as Farrand).
    \3\ Ibid., p. 297.
    \4\ Ibid., p. 393
---------------------------------------------------------------------------
    By September 4 delegates had agreed that the President ``by 
and with the advice and consent of the Senate, shall have power 
to make treaties,'' and that no treaty shall be made without 
the consent of two-thirds of the Senators present.\5\ This 
portion of the report was brought up for discussion on 
September 7. James Wilson of Pennsylvania moved to add the 
words ``and House of Representatives'' after the word Senate 
because, he said, since treaties ``are to have the operation of 
laws, they ought to have the sanction of laws also.'' As to the 
objection that secrecy was needed for treatymaking, he said 
that factor was outweighed by the necessity for the sanction of 
both chambers. Roger Sherman of Connecticut argued that the 
requirement of secrecy for treaties ``forbade a reference of 
them to the whole Legislature.'' Wilson's motion was 
defeated.\6\
---------------------------------------------------------------------------
    \5\ Ibid., pp. 495, 498-499.
    \6\ Ibid., p. 538.
---------------------------------------------------------------------------
    Considerable attention was given to the size of the Senate 
majority that should be required. Wilson objected to requiring 
a two-thirds majority on the grounds that it ``puts it in the 
power of a minority to control the will of a majority.'' He was 
supported by Rufus King of Massachusetts, who pointed out that 
there was already a check by joining the President in the 
treatymaking process.\7\ Several amendments were defeated: (1) 
to allow two-thirds of the Senate to make treaties of peace 
without the President's concurrence; (2) to strike out 
altogether the clause requiring approval by two-thirds of the 
Senate; (3) to require the consent of two-thirds of all the 
members of the Senate; (4) to require a majority of the whole 
number of the Senate; (5) to establish that a quorum of the 
Senate consist of two-thirds of all the members; and (6) to 
provide that ``no Treaty shd. be made with[ou]t previous notice 
to the members, & a reasonable time for their attending.'' \8\
---------------------------------------------------------------------------
    \7\ Ibid., p. 540.
    \8\ Ibid., pp. 540-541, 547-550.
---------------------------------------------------------------------------
    A committee was then appointed to revise the style and 
arrangement of the articles that had been adopted, and the text 
reported back was finally approved by the convention as Section 
2 of Article II in its current form. Thus, the power to make 
treaties, at first given to the Senate by the Committee of 
Detail, was transferred to the President by and with the advice 
and consent of the Senate.

                           debate on adoption

    Further indications of the intended meaning of the 
constitutional provisions are found in ``The Federalist,'' a 
group of papers written by Alexander Hamilton, John Jay, and 
James Madison to explain and win support for the Constitution, 
and in debates in the State Constitutional Conventions called 
to decide on its adoption. These sources sustain the conclusion 
that the original intention was that the Senate and the 
President share the treatymaking power, with the sharing to 
begin early and continue throughout the treatymaking process.
    Federalist No. 75 by Hamilton ascribes a ``peculiar 
propriety'' to the union of the President and the Senate in the 
treatymaking process:
          Though several writers on the subject of government 
        place that power in the class of executive authorities, 
        yet this is evidently an arbitrary disposition; for if 
        we attend carefully to its operation, it will be found 
        to partake more of the legislative than of the 
        executive character, though it does not seem strictly 
        to fall within the definition of either of them. The 
        essence of the legislative authority is to enact laws, 
        or, in other words, to prescribe rules for the 
        regulation of the society; while the execution of the 
        laws, and the employment of the common strength, either 
        for this purpose or for the common defense, seem to 
        comprise all the functions of the executive magistrate. 
        The power of making treaties is, plainly neither the 
        one nor the other. * * * Its objects are CONTRACTS with 
        foreign nations, which have the force of law, but 
        derive it from the obligations of good faith. They are 
        not rules prescribed by the sovereign to the subject, 
        but agreements between sovereign and sovereign. The 
        power in question seems therefore to form a distinct 
        department, and to belong, properly, neither to the 
        legislative nor to the executive. The qualities 
        elsewhere detailed as indispensable in the management 
        of foreign negotiations, point out the Executive as the 
        most fit agent in those transactions; while the vast 
        importance of the trust, and the operation of treaties 
        as laws, plead strongly for the participation of the 
        whole or a portion of the legislative body in the 
        office of making them.\9\
---------------------------------------------------------------------------
    \9\ The Federalist (Benjamin Fletcher Wright ed.), Cambridge, 
Mass., Harvard University Press (1961), pp. 476-477.

    Federalist No. 64 by Jay foresees that on some occasions 
the President would undertake preparatory work on treaties 
alone but nevertheless would call upon the Senate in important 
matters:
          It seldom happens in the negotiation of treaties, of 
        whatever nature, but that perfect secrecy and immediate 
        despatch are sometimes requisite. There are cases where 
        the most useful intelligence may be obtained, if the 
        persons possessing it can be relieved from 
        apprehensions of discovery. Those apprehensions will 
        operate on those persons whether they are actuated by 
        mercenary or friendly motives; and there doubtless are 
        many of both descriptions, who would rely on the 
        secrecy of the President, but who would not confide in 
        that of the Senate, and still less in that of a large 
        popular Assembly. The convention have done well, 
        therefore, in so disposing of the power of making 
        treaties, that although the President must, in forming 
        them, act by the advice and consent of the Senate, yet 
        he will be able to manage the business of intelligence 
        in such a manner as prudence may suggest.
          * * * Those matters which in negotiations usually 
        require the most secrecy and the most despatch, are 
        those preparatory and auxiliary measures which are not 
        otherwise important in a national view, than as they 
        tend to facilitate the attainment of the objects of the 
        negotiation. For these, the President will find no 
        difficulty to provide; and should any circumstance 
        occur which requires the advice and consent of the 
        Senate, he may at any time convene them. * * *
          Some are displeased with it, not on account of any 
        errors or defects in it, but because, as the treaties, 
        when made, are to have the force of laws, they should 
        be made only by men vested with legislative authority. 
        * * *
          Others, though content that treaties should be made 
        in the mode proposed, are averse to their being the 
        supreme law of the land. They insist, and profess to 
        believe, that treaties like acts of assembly, should be 
        repealable at pleasure. This idea seems to be new and 
        peculiar to this country, but new errors, as well as 
        new truths, often appear. These gentlemen would do well 
        to reflect that a treaty is only another name for a 
        bargain, and that it would be impossible to find a 
        Nation who would make any bargain with us, which should 
        be binding on them absolutely, but on us only so long 
        and so far as we may think proper to be bound by 
        it.\10\
---------------------------------------------------------------------------
    \10\ Ibid., pp. 422-424.

    Pierce Butler, one of the delegates of the Federal 
Convention and a member of the committee that drafted the 
treaty clause, explained to the members of the South Carolina 
ratifying convention the reasons that lay behind the 
constitutional language:
          It was at first proposed to vest the sole power of 
        making peace or war in the Senate; but this was 
        objected to as inimical to the genius of a republic, by 
        destroying the necessary balance they were anxious to 
        preserve. Some gentlemen were inclined to give this 
        power to the President, but it was objected to, as 
        throwing into his hands the influence of a monarch, 
        having an opportunity of involving his country in a war 
        whenever he wished to promote her destruction. The 
        House of Representatives was then named; but an 
        insurmountable objection was made to this proposition--
        which was, that negotiations always required the 
        greatest secrecy, which could not be expected in a 
        large body.\11\
---------------------------------------------------------------------------
    \11\ The Debates in the Several State Conventions on the Adoption 
of the Federal Convention (Jonathan Elliot ed.), v. 4, p. 263.

    Charles Cotesworth Pinckney, who had originally proposed in 
the convention that the treatymaking power be given to the 
Senate alone, explained to the South Carolina Legislature that 
the Senate would approve or disapprove the terms of treaties 
proposed by the President.
          At last it was agreed to give the President a power 
        of proposing treaties, as he was the ostensible head of 
        the Union, and to vest the Senate (where each state had 
        an equal voice) with the power of agreeing or 
        disagreeing to the terms proposed. * * * On the whole, 
        a large majority of the Convention thought this power 
        would be more safely lodged where they had finally 
        vested it, than any where else. It was a power that 
        must necessarily be lodged somewhere: political caution 
        and republican jealousy rendered it improper for us to 
        vest in the President alone; the nature of negotiation, 
        and the frequent recess of the House of 
        Representatives, rendered that body an improper 
        depository of this prerogative. The President and 
        Senate joined were, therefore, after much deliberation, 
        deemed the most eligible corps in whom we could with 
        safety vest the diplomatic authority of the Union.\12\
---------------------------------------------------------------------------
    \12\ Ibid., p. 265.
---------------------------------------------------------------------------

                   B. Evolution into Current Practice

    Early practice in treatymaking lends further insight into 
the intentions of the Framers of the Constitution, as well as 
into factors bringing about current practice. The first 
President of the United States had also presided at the 
Constitutional Convention, and most of the Members of the 
Senate during his administrations either had been members of 
the Continental or Confederation Congresses or attended the 
Constitutional Convention or the state conventions called to 
adopt the Constitution.\13\
---------------------------------------------------------------------------
    \13\ ``Of the sixty-six men who served in the Senate during 
Washington's administrations, thirty-one had been members of the 
Constitutional Congress or of the Congress of the Confederation, twelve 
had helped draft the Constitution in the convention at Philadelphia, 
and ten had been members of state conventions which had ratified the 
Federal instrument.'' Hayden, Ralston. The Senate and Treaties, 1789-
1817. New York, Macmillan, 1920, p. 3.
---------------------------------------------------------------------------

                      washington's administrations

    On August 6, 1789, the Senate appointed a committee to 
confer with the President on the manner in which communications 
between them concerning treaties and nominations should be 
handled. In a message to the committee on August 8, 1789, 
President Washington stated that in all matters respecting 
treaties ``oral communications seem indispensably necessary; 
because in these a variety of matters are contained, all of 
which not only require consideration, but some of them may 
undergo much discussion; to do which by written communications 
would be tedious without being satisfactory.'' \14\ In a second 
message on August 10, he distinguished between appointments--in 
which ``the agency of the Senate is purely executive''--and 
treaties, where ``the agency is perhaps as much of a 
legislative nature and the business may possibly be referred to 
their deliberations in their legislative chamber.'' In this 
same message, he explained that the Senate was to be consulted 
in advance of making a treaty. Treaties would be presented to 
the Senate in an interim form (``propositions''), not as a 
completed product:
---------------------------------------------------------------------------
    \14\ The Writings of George Washington (John C. Fitzpatrick ed.), 
v. 30, p. 373.
---------------------------------------------------------------------------
          On some occasions it may be most convenient that the 
        President should attend the deliberations and decisions 
        on his propositions; on others that he should not; or 
        that he should not attend the whole of the time. In 
        other cases, again, as in Treaties of a complicated 
        nature, it may happen, that he will send his 
        propositions in writing and consult the Senate in 
        person after time shall have been allowed for 
        consideration.\15\
---------------------------------------------------------------------------
    \15\ Ibid., p. 378.

    President Washington recommended that the Senate should 
accommodate its rules to the uncertainty of the particular mode 
and place, provide for either oral or written propositions, and 
for giving consent and advice in either the presence or absence 
of the President, leaving the President free to establish the 
mode and place.
    Accordingly, on August 21, 1789, the Senate adopted a rule 
on the procedure to be followed when the President met with the 
Senate. The rule covered both appointments and treaties:
          Resolved, That when nominations shall be made in 
        writing by the President of the United States to the 
        Senate, a future day shall be assigned, unless the 
        Senate unanimously direct otherwise, for taking them 
        into consideration; that when the President of the 
        United States shall meet the Senate in the Senate 
        Chamber, the President of the Senate shall have a chair 
        on the floor, be considered as at the head of the 
        Senate, and his chair shall be assigned to the 
        President of the United States; that when the Senate 
        shall be convened by the President of the United States 
        to any other place, the President of the Senate and 
        Senators shall attend at the place appointed. The 
        Secretary of the Senate shall also attend to take the 
        minutes of the Senate.
          That all questions shall be put by the President of 
        the Senate, either in the presence or absence of the 
        President of the United States; and the Senators shall 
        signify their assent or dissent by answering viva voce, 
        aye or no.\16\
---------------------------------------------------------------------------
    \16\ 1 Annals of Cong. 65 (August 21, 1789) (emphasis in original).

    The same day President Washington gave notice of his 
intention to meet with the Senate to consider the terms of a 
treaty to be negotiated with the Southern Indians. The next 
day, Saturday, President Washington came into the Senate 
Chamber, accompanied by Secretary of War Henry Knox, and 
presented a paper giving an explanation of the proposed treaty. 
He then asked the Senate for its advice and consent on seven 
questions to guide the commissioners who were negotiating the 
treaty. At his request, the Senate postponed voting on the 
first question. On the second question, regarding instructions 
to the commissioners to pursue other measures respecting the 
Chickasaws and Choctaws, the Senate voted in the negative.\17\ 
On Monday, August 24, the President again returned to the 
Senate Chamber and votes were taken on the rest of the 
questions.\18\
---------------------------------------------------------------------------
    \17\ Ibid., p. 69.
    \18\ Ibid., pp. 69-71.
---------------------------------------------------------------------------
    These meetings between the Senate and the President are 
famous as the first and last times that a President personally 
appeared before the Senate to seek its advice and consent. The 
meetings apparently were not satisfactory to either side. While 
the Executive Journal of the Senate does not record the debate, 
William Maclay, a Senator from Pennsylvania, recorded in his 
journal the difficulty of hearing the discussion and the 
seeming haste for decisions. Because of the noise created by 
carriages driving past, Maclay ``could tell it was something 
about Indians, but was not master of one sentence of it.'' When 
it was proposed that the questions be referred to a committee, 
Washington ``started up in a violent fret'' and stated that 
``This defeats every purpose of my coming here.'' Maclay also 
wrote:
          I had, at an early stage of the business, whispered 
        to Mr. Morris that, I thought, the best way to conduct 
        the business was to have all the papers committed. My 
        reasons were that I saw no chance of a fair 
        investigation of subjects while the President of the 
        United States sat there, with his Secretary of War to 
        support his opinions, and overawe the timid and neutral 
        part of the Senate.\19\
---------------------------------------------------------------------------
    \19\ Maclay, William. Sketches of Debate in the First Senate of the 
United States (George W. Harris ed.), Harrisburg, Lane S. Hart (1880), 
p. 124.

    The dissatisfaction on the President's side is often 
illustrated with the following quotation from the memoirs of 
John Quincy Adams:
          Mr. Crawford told twice over the story of President 
        Washington's having at an early period of his 
        Administration gone to the Senate with a project of a 
        treaty to be negotiated, and been present at their 
        deliberations upon it. They debated it and proposed 
        alterations, so that when Washington left the Senate-
        chamber he said he would be damned if he ever went 
        there again. And ever since that time treaties have 
        been negotiated by the Executive before submitting them 
        to the consideration of the Senate.\20\
---------------------------------------------------------------------------
    \20\ Memoirs of John Quincy Adams (Charles Francis Adams ed.), 
Philadelphia, J.B. Lippincott (1875), v. VI, p. 427 (emphasis in 
original).

    It is error to conclude from this unhappy incident that 
Washington and future Presidents thereafter excluded the Senate 
from the treaty negotiation process. Washington continued to 
seek the advice of Senators, but he did so through written 
communications rather than personal appearances. For example, 
on February 9, 1790, he wrote to the Senate about a boundary 
line between U.S. and British territories. He thought ``it 
advisable to postpone any negotiations on the subject until I 
shall be informed of the result of your deliberations and 
receive your advice as to the propositions most proper to be 
offered on the part of the United States.'' \21\ On May 8, 
1792, he asked the Senate these questions:
---------------------------------------------------------------------------
    \21\ A Compilation of the Messages and Papers of the Presidents 
(James D. Richardson ed.), New York, Bureau of National Literature 
(1897-1925), v. 1, p. 64 (hereafter cited as Richardson).
---------------------------------------------------------------------------
          If the President of the United States should conclude 
        a convention or treaty with the Government of Algiers 
        for the ransom of the thirteen Americans in captivity 
        there for a sum not exceeding $40,000, all expenses 
        included, will the Senate approve the same? Or is there 
        any, and what, greater or lesser sum which they would 
        fix on as the limit beyond which they would not approve 
        the ransom?
          If the President of the United States should conclude 
        a treaty with the Government of Algiers for the 
        establishment of peace with them, at an expense not 
        exceeding $25,000, paid at the signature, and a like 
        sum to be paid annually afterwards during the 
        continuance of the treaty, would the Senate approve the 
        same? Or are there any greater or lesser sums which 
        they would fix on as the limits beyond which they would 
        not approve of such treaty? \22\
---------------------------------------------------------------------------
    \22\ Ibid., p. 115.

    On some occasions, however, President Washington did not 
consult the Senate in advance of negotiations. Four treaties 
with Indian tribes negotiated during Washington's 
administrations without prior consultation with the Senate were 
approved. In regard to one of these, the Treaty of Greenville 
with the Indians northwest of the Ohio, Washington consulted 
his Cabinet on whether consultations with the Senate should be 
undertaken prior to negotiation and the Cabinet unanimously 
expressed the opinion it would be better not to. Thomas 
Jefferson wrote that all thought that if the Senate were 
consulted and told of plans, it would become known to the 
British minister and ``we would lose all chance of saving 
anything more than our ultimatum.'' \23\
---------------------------------------------------------------------------
    \23\ Hayden, Ralston. The Senate and Treaties, 1789-1817. New York, 
Macmillan Co., 1920, pp. 37-38.
---------------------------------------------------------------------------
     In the case of the Jay Treaty with Great Britain of 
November 19, 1794, a few Senators helped initiate the treaty 
and were prominent in its negotiation, but the President did 
not obtain the advice and consent of the entire Senate on the 
instructions to the negotiation. Just before approving the 
appointment of John Jay as special envoy to Britain, the Senate 
rejected a motion asking the President to supply it with 
complete information on the business to be charged to Jay. 
However, it was recognized that the treaty would have to be 
negotiated subject to obtaining the consent of the Senate to 
ratification. When the final treaty was put before the Senate, 
the Senate made its consent conditional upon alteration of the 
treaty. After the revisions requested by the Senate were made 
and accepted by Britain, the President ratified the revised 
treaty without further submission to the Senate.
    The Senate on one occasion was called upon to assist in the 
interpretation of a treaty. In 1791, France contended that 
certain acts of Congress imposing requirements on ships without 
excepting those of France were in contravention of the Treaty 
of 1778. After considering various alternatives presented by 
the Secretary of State, the Senate expressed the opinion that 
the American interpretation of the treaty was correct and 
advised that this answer be given to France in the most 
friendly manner. This course was adopted.\24\
---------------------------------------------------------------------------
    \24\ Hayden, op. cit., p. 101.
---------------------------------------------------------------------------
    The conclusions of one student of the subject on the 
evolution of the treatymaking procedures during Washington's 
administrations have been stated as follows:
          One very important decision reached by the logic of 
        events during these eight years, however, was that the 
        Senate could not really be a ``council of advice'' to 
        the President in treaty-making. Yet evidently both 
        Washington and the Senate originally expected that it 
        would be such a council. The personal element in their 
        relations was emphasized by the presence of the 
        Secretary of State or the Secretary of War, or, in the 
        one instance, of the President himself, at their 
        deliberations.
          As the Senate ceased to be consulted as a real 
        ``council of advice,'' its activities in that part of 
        treaty-making known as the negotiation became less 
        important. At first in making treaties both with the 
        Indian tribes and with foreign nations the President 
        usually secured the advice and consent of the Senate to 
        the details of the proposed treaty before opening the 
        negotiation. In the end it became his custom merely to 
        inform the Senate of the proposed negotiation upon 
        securing its consent to the nomination of the agent, 
        and to submit the latter's instructions only with the 
        completed treaty. * * * The effect of the change in 
        procedure was to leave the President free to negotiate 
        the sort of treaty which the necessities of the 
        situation demanded and allowed, while the Senate 
        retained a like freedom to accept, to amend, or to 
        reject the result of his efforts.\25\
---------------------------------------------------------------------------
    \25\ Hayden, op. cit., pp. 105-106.
---------------------------------------------------------------------------

                    presidencies from adams to polk

    During subsequent administrations, the respective roles of 
the Senate and the President were further refined. Through its 
action on the Treaty of 1797 with Tunis, the Senate established 
its right to make its approval of a treaty conditional upon 
changes in the text or terms that might require renegotiation. 
In the European monarchies prior to that time, it had been 
considered obligatory for the monarchies to ratify a treaty if 
his emissary had stayed within his instructions, and no 
practice existed of reservations to parts of treaties. After 
considering the treaty with Tunis, the Senate adopted a 
resolution advising and consenting to its ratification on 
condition that a certain article be suspended and recommending 
renegotiation of the article. Renegotiation was undertaken and 
the Senate subsequently gave its advice and consent to the 
ratification of the article in question and two other articles 
that were renegotiated.\26\ The King-Hawksbury Convention of 
May 12, 1803, became the first treaty not to enter into force 
because the other party, Great Britain, would not accept an 
amendment advised by the Senate. Lord Harrowby, the head of the 
British Foreign Office at that time, criticized the practice of 
ratifying treaties with exceptions to parts of them, a practice 
which he called ``new, unauthorized and not to be sanctioned.'' 
\27\ Gradually, however, other countries became used to the 
American procedure.
---------------------------------------------------------------------------
    \26\ Ibid., pp. 108-111.
    \27\ Ibid., p. 150.
---------------------------------------------------------------------------
    President Andrew Jackson appreciated the value of seeking 
the advice of Senators on how best to pursue treaty 
negotiations. On May 6, 1830, he submitted to the Senate 
``propositions'' for a treaty with the Chocktaw Indians. He 
indicated the amendments he thought necessary, but elicited the 
Senate's views: ``Not being tenacious though, on the subject, I 
will most cheerfully adopt any modifications which, on a frank 
interchange of opinions my Constitutional advisors may suggest 
and which I shall be satisfied are reconcilable with my 
official duties.'' \28\ He explained that the Indians 
recommended that their propositions be submitted to the Senate, 
and that the Senate's opinion ``will have a salutary effect in 
a future negotiation, if one should be deemed proper.'' \29\ 
Instead of acting unilaterally, Jackson thought it would be 
more satisfactory to the American people and to the Indians to 
have ``the united counsel of the treatymaking power.'' \30\
---------------------------------------------------------------------------
    \28\ Journal of the Executive Proceedings of the Senate, vol. 4, p. 
98.
    \29\ Ibid.
    \30\ Ibid., p. 99.
---------------------------------------------------------------------------
    President James K. Polk also invited the Senate's advice on 
negotiating a treaty. He regarded the Senate as ``a branch of 
the treatymaking power, and by consulting them in advance of 
his own action upon important measures of foreign policy which 
may ultimately come before them for their consideration the 
President secures harmony of action between that body and 
himself.'' \31\
---------------------------------------------------------------------------
    \31\ Richardson, vol. 5, p. 2299.
---------------------------------------------------------------------------

                            indian treaties

    Conclusion of treaties with Indian tribes ended in 1871. 
For almost a century, Indian tribes were treated as independent 
nations and subjected to the treatymaking power of the 
President and the Senate. However, the Constitution also 
empowers Congress to ``regulate Commerce with foreign Nations, 
and among the several States, and with the Indian Tribes.'' 
Partly because of corruption and mismanagement in the Office of 
Indian Affairs, the House of Representatives began to object to 
its exclusion from Indian affairs. In 1869, the Senate added 
funds to an appropriations bill to fulfill Indian treaties it 
had approved, but the House refused to grant the funds.\32\ In 
1871, the House completed its reassertion by enacting this 
language: ``Provided, That hereafter no Indian Nation or tribe 
within the territory of the United States shall be acknowledged 
or recognized as an independent nation, tribe, or power with 
whom the United States may contract by treaty.'' \33\ That 
language was later incorporated into permanent law as 25 U.S.C. 
Sec. 71 (1994).
---------------------------------------------------------------------------
    \32\ Cohen, Felix. Felix Cohen's Handbook on Federal Indian Law 
(1971), p. 66.
    \33\ Act of March 3, 1871, ch. 120, sec. 1, 16 Stat. 566. For 
further involvement of the House and the Senate in the treaty process, 
see Louis Fisher, ``Congressional Participation in the Treaty 
Process,'' University of Pennsylvania Law Review, vol. 137, pp. 1511-
1522 (1989).
---------------------------------------------------------------------------

                       conflicts and cooperation

    Presidents have varied in their attitude toward Senate 
participation in the treaty process. Some have included 
Senators; others have kept the negotiation of treaties an 
executive monopoly. President Woodrow Wilson believed that the 
President should not consult with the Senate and treat it as an 
equal partner. He applied this theory to the Versailles Treaty, 
which the Senate twice rejected.\34\ On the other hand, 
Presidents such as William McKinley, Warren Harding, and 
Herbert Hoover included Senators and Representatives as members 
of U.S. delegations that negotiated treaties. The details of 
the U.N. Charter were hammered out at a conference in San 
Francisco in 1945. Half of the eight members of the U.S. 
delegation came from Congress: Senators Tom Connally (D-Tex.) 
and Arthur H. Vandenberg (R-Mich.) and Representatives Sol 
Bloom (D-N.Y.) and Charles A. Eaton (R-N.J.).
---------------------------------------------------------------------------
    \34\ For academic refutations of Wilson's thesis, see Forrest R. 
Black, ``The United States Senate and the Treaty Power,'' Rocky 
Mountain Law Review, vol. 4, pp. 1-19 (1931); Richard E. Webb, 
``Treaty-Making and the President's Obligation to Seek the Advice and 
Consent of the Senate with Special Reference to the Vietnam Peace 
Negotiations,'' Ohio State Law Journal, vol. 31, pp. 490-519 (1970).
---------------------------------------------------------------------------
    During negotiations of the North Atlantic Treaty, Senators 
Thomas Connally and Arthur Vandenberg were with Secretary of 
State Dean Acheson ``all the time,'' and Senator Walter George 
actually wrote one of the treaty provisions.\35\ The Carter 
Administration consulted with at least 70 Senators during the 
final phase of the negotiations of the Panama Canal Treaty.\36\ 
During 1977 and 1978, 26 Senators served in Geneva as official 
advisers to the SALT II negotiating team.\37\
---------------------------------------------------------------------------
    \35\ ``Executive Privilege: The Withholding of Information by the 
Executive,'' hearings before the Senate Committee on the Judiciary, 92d 
Cong., 1st Sess. (1971), pp. 262-264.
    \36\ I.M. Destler, ``Treaty Troubles: Versailles in Reverse,'' 
Foreign Policy, vol. 35, p. 50 (1978-1979).
    \37\ I.M. Destler, ``Executive-Congressional Conflict in Foreign 
Policy: Explaining It, Coping With It, in Congress Reconsidered 
(Lawrence C. Dodd & Bruce I. Oppenheimer eds., 1981), p. 310.
---------------------------------------------------------------------------
    The notion that the President is the exclusive negotiator 
of treaties and international agreements has been undercut by 
recent trade legislation, which gives Congress a direct role in 
the negotiation process. It has become the practice of Congress 
to offer the President a ``fast-track'' legislative procedure 
for implementing trade agreements with other nations. Fast-
track means that the President's implementing bill is 
automatically introduced in Congress, committees must act 
within a specified number of days, Congress must complete floor 
action within a limited time, and amendments to the bill are 
prohibited either in committee or on the floor. Through this 
procedure, leaders of foreign governments (often with 
parliamentary systems that vest strong powers in the Executive) 
are assured that the trade pact will be given expedited 
consideration by Congress.
    In obtaining these procedural benefits, the President 
recognizes that Members of Congress must be closely involved in 
the negotiations that produce the implementing bill. In 1991, 
after President George Bush asked Congress to extend the fast 
track for a trade pact with Mexico, U.S. Trade Representative 
Carla A. Hills told the Senate Finance Committee that the fast 
track ``is a genuine partnership between the two branches.'' 
Because Congress retained the power to defeat the implementing 
bill, Hills emphasized that Congress ``has a full role 
throughout the entire process in formulating the negotiating 
objectives in close consultation as the negotiations proceed.'' 
\38\ President Bush gave Congress his ``personal commitment to 
close bipartisan cooperation in the negotiations and beyond.'' 
\39\
---------------------------------------------------------------------------
    \38\ ``Extension of Fast Track Legislative Procedures,'' hearings 
before the Senate Committee on Finance, 102d Cong., 1st Sess. (1991), 
p. 9.
    \39\ Public Papers of the Presidents, 1991, I, p. 450.
---------------------------------------------------------------------------

            executive agreements and multilateral agreements

    Early practice ushered in the use of ``executive 
agreements'': international agreements that are not submitted 
to the Senate as treaties.\40\ Legislation in 1792 authorized 
the Postmaster General to make arrangements with foreign 
postmasters for the receipt and delivery of letters and 
packets.\41\ Executive officials also entered into reciprocal 
trade agreements on the basis of statutory authority. Although 
such agreements lacked what the Supreme Court in 1912 called 
the ``dignity'' of a treaty, since they do not require Senate 
approval, they are nonetheless valid international 
compacts.\42\
---------------------------------------------------------------------------
    \40\ For discussion of domestic legal aspects of executive 
agreements, see Chapter IV.
    \41\ 1 Stat. 239 (1792).
    \42\ Altman & Co. v. United States, 224 U.S. 583, 600-01 (1912). In 
United States v. Pink, 315 U.S. 203, 230 (1942), Justice Douglas 
regarded executive agreements as having a ``similar dignity'' with 
treaties.
---------------------------------------------------------------------------
    After the Second World War, the United States entered into 
a dramatically increasing number of international agreements, 
and most of these were concluded as executive agreements. Table 
II-1 depicts the tremendous growth in the number of U.S. 
treaties and other international agreements in 50-year periods 
from 1789 through 1989 and Table II-2 depicts the annual growth 
since 1930. These statistics on treaties and agreements 
``concluded'' means agreements that completed the negotiation 
stage and have been signed but may not yet have entered into 
force. In this data ``concluded'' does not mean agreements and 
treaties that have all entered into force.
    As apparent from the charts, after 1945 the number of 
international agreements concluded annually escalated rapidly. 
One factor was the continuing increase in the number of newly 
independ-


 Table II-1.--Treaties and Executive Agreements Concluded by the United
                          States, 1789-1989 \1\
------------------------------------------------------------------------
                                                               Executive
                     Period                        Treaties   Agreements
------------------------------------------------------------------------
1789-1839.......................................          60          27
1839-1889.......................................         215         238
1889-1939.......................................         524         917
1939-1989.......................................         702      11,698
                                                 -----------------------
    Total.......................................       1,501      12,880
------------------------------------------------------------------------
\1\ Data on the period since 1945 has been furnished by the Department
  of State, Office of the Assistant Legal Adviser for Treaty Affairs.
  Data prior to 1945 is from the Congressional Record, May 2, 1945, p.
  4118. In Borchard, Edwin M. Treaties and Executive Agreements.
  American Political Science Review, v. 40, no. 4, August 1947, p. 735.


            Table II-2.--Treaties and Executive Agreements Concluded by the United States, 1930-1999
----------------------------------------------------------------------------------------------------------------
                          Executive                              Executive                            Executive
   Year      Treaties     Agreements      Year      Treaties     Agreements     Year     Treaties    Agreements
----------------------------------------------------------------------------------------------------------------
   1930          25             11        1950          11            157       1970         20            183
   1931          13             14        1951          21            213       1971         17            214
   1932           1             16        1952          22            291       1972         20            287
   1933           9             11        1953          14            163       1973         17            241
   1934          14             16        1954          17            206       1974         13            229
   1935          25             10        1955           7            297       1975         13            264
   1936           8             16        1956          15            233       1976         13            402
   1937          15             10        1957           9            222       1977         17            424
   1938          12             24        1958          10            197       1978         15            417
   1939          10             26        1959          12            250       1979         28            378
----------------------------------------------------------------------------------------------------------------
   1940          12             20        1960           5            266       1980         26            321
   1941          15             39        1961           9            260       1981         12            322
   1942           6             52        1962          10            319       1982         17            343
   1943           4             71        1963          17            234       1983         23            282
   1944           1             74        1964           3            222       1984         15            336
   1945           6             54        1965          14            204       1985          8            336
   1946          19            139        1966          14            237       1986         17            400
   1947          15            144        1967          18            223       1987         12            434
   1948          16            178        1968          18            197       1988         21            387
   1949          22            148        1969           6            162       1989         15            363
----------------------------------------------------------------------------------------------------------------
                                          1990          20            398
                                          1991          11            286
                                          1992          21            303
                                          1993          17            257
                                          1994          24            338
                                          1995          17            300
                                          1996          48            260
                                          1997          40            257
                                          1998          25            259
                                          1999          26            199
----------------------------------------------------------------------------------------------------------------

ent nations with which the United States interacts. Treaties in 
the early days of the Nation were limited to Indian tribes and 
a comparatively few foreign powers, including France, Great 
Britain, Algiers, Spain, and Russia. By January 1, 1999, the 
United States had bilateral treaties or other international 
agreements with more than 200 countries.\43\
---------------------------------------------------------------------------
    \43\ U.S. Department of State. Treaties in Force. A list of 
treaties and other international agreements of the United States in 
force on January 1, 1999, pp. iii-v.
---------------------------------------------------------------------------
    Another factor was the growing international cooperation of 
the United States, and the continuing emergence of new fields 
of international cooperation, such as atomic energy, space 
research, and satellites. Agreements with a single country 
often cover a whole range of subjects ranging from aviation, 
commerce, and defense to environmental cooperation, patents, 
and taxation. The United States had more than 200 international 
agreements with the United Kingdom in force in 1999, for 
example, listed under almost 60 different subjects.\44\
---------------------------------------------------------------------------
    \44\ Treaties in Force, 1999, pp. 301-312.
---------------------------------------------------------------------------
    Cumulatively, in 1989 the United States was a party to 890 
treaties and 5,117 executive agreements.\45\ The total number 
of treaties and other international agreements in force 
increases with time because, once entered into, agreements 
remain in force until they expire by their own terms or are 
denounced, replaced, or superceded. While some international 
agreements are by their terms temporary or limited to a 
specific time period, others are intended to be more or less 
permanent. To illustrate, still listed among treaties in force 
with the United Kingdom are the Paris Peace Treaty of 1783, the 
Jay Treaty of 1794, and the Treaty of Peace and Amity signed at 
Ghent in 1814.
---------------------------------------------------------------------------
    \45\ Information from the U.S. Department of State, Office of the 
Assistant Legal Adviser for Treaty Affairs, September 29, 2000. 
Comprehensive and detailed data for the years after 1989 is no longer 
being tabulated by the State Department.
---------------------------------------------------------------------------

      increasing proportion of executive and statutory agreements

    Accompanying the increase in international agreements was 
the increase of international agreements other than treaties, 
that is, agreements not submitted to the Senate. As the 
preceding table shows, in the first 50 years of U.S. history, 
twice as many treaties were concluded as executive agreements. 
In the 50-year period from 1839 to 1889 a few more executive 
agreements than treaties were concluded. In the 50-year period 
from 1889 to 1939 almost twice as many executive agreements as 
treaties were concluded. In the period since 1939 executive 
agreements have comprised more than 90 percent of the 
international agreements concluded.
    The growth in executive agreements may be accounted for by 
a number of factors.\46\ A primary factor is the sheer increase 
in volume of the amount of business and contacts between the 
United States and other countries. Many observers believe it 
would be impractical to submit every international agreement 
the United States enters to the Senate as a treaty. An 
executive agreement is usually much simpler to conclude or 
amend than a treaty. The Senate, with an already heavy 
workload, would quickly find itself overburdened if all 
international agreements, no matter how minor in importance, 
were submitted to it for advice and consent.
---------------------------------------------------------------------------
    \46\ Some of the increase since 1973 may be attributed to the 
counting of agency level agreements that may not have been counted 
prior to the passage of the Case-Zablocki Act in 1973, just as the 
decrease in 1991 may be accounted for partly by the cessation of the 
reporting under the Case-Zablocki Act of agricultural commodity 
agreements. See Chapter X.
---------------------------------------------------------------------------
    Most executive agreements are concluded under the authority 
of a statute or prior treaty.\47\ In a wide variety of laws 
Congress has authorized the executive branch to conclude 
international agreements in fields including foreign aid, 
agriculture, and mutual security. Similarly, the Senate has 
approved numerous treaties that implicitly or explicitly 
authorized further agreement among the parties. As an example, 
the executive branch has concluded numerous defense and base 
agreements on the basis of the North Atlantic Treaty and other 
security treaties. One study found that 88.3 percent of 
international agreements reached between 1946 and 1972 were 
based at least partly on statutory authority; 6.2 percent on 
treaties, and 5.5 percent solely on executive authority.\48\
---------------------------------------------------------------------------
    \47\ See also Chapter IV, section on Executive Agreements.
    \48\ U.S. Congress. Senate Committee on Foreign Relations. 
International Agreements: An Analysis of Executive Regulations and 
Practices. Prepared by the Congressional Research Service, Library of 
Congress, 1974-1975, by R. Roger Majak. Committee Print, 1977, p. 22. 
See further discussion in Chapters IV and X.
---------------------------------------------------------------------------
    An increasing number of international agreements require 
the specific approval of Congress before entry into force 
rather than being submitted as treaties to the Senate. On 
occasion, this has been done at the initiative of the executive 
branch with the knowledge that an international agreement was 
unlikely to receive the approval of two-thirds of the Senate, 
or to assure that funds for implementation would be approved by 
the House of Representatives. One historian knowledgeable about 
executive agreements wrote, ``On certain occasions, when the 
treatymaking method has failed or seemed likely to fail, he 
[the President] has accomplished his purpose by substituting 
the more facile type of instrument.'' \49\
---------------------------------------------------------------------------
    \49\ McClure, Wallace Mitchell. International Executive Agreements. 
New York, Columbia University Press, 1941, p. 4.
---------------------------------------------------------------------------
    More often, legislation has required that executive 
agreements in some categories be submitted to Congress for 
specific approval or for tacit approval (through no negative 
action in a specified time period) before they enter into 
force. In trade legislation, Congress has authorized the 
President to negotiate certain agreements but has required that 
Congress approve the agreements, as well as requiring the 
executive branch to notify and consult with Congress during the 
negotiations. Nuclear, fisheries, and social security 
agreements are among those required by law to lie before 
Congress for specified time periods before they can enter into 
force. During this period, Congress can pass legislation 
disapproving the agreements, often with expedited procedures.
    The increasing use of international agreements other than 
treaties challenged the Senate to oversee that the executive 
agreement process was not used when agreements should properly 
be submitted to the Senate as treaties. Similarly, the 
increasing rise of agreements requiring approval by Congress, 
while assuring a congressional role, challenged the Senate to 
distinguish which types of agreements required submission to 
the Senate under the traditional treaty procedure.\50\
---------------------------------------------------------------------------
    \50\ See Chapter X.
---------------------------------------------------------------------------

                   growth in multilateral agreements

    The third main change in the field of international 
agreements is the growth of multilateral agreements, agreements 
among three or more parties as opposed to bilateral treaties 
between two parties. Multilateral agreements for the United 
States were rare prior to the 20th century. After the end of 
the Second World War, their numbers grew as nations found a 
multilateral treaty could render unnecessary dozens of 
bilateral treaties and establish an agreed international 
standard. From 1980 through 1999, the United States concluded 
or acceded to 450 multilateral agreements.\51\
---------------------------------------------------------------------------
    \51\ Information from Office of the Assistant Legal Adviser for 
Treaty Affairs, September 29, 2000.
---------------------------------------------------------------------------
    Multilateral agreements vary widely in number of parties, 
subject matter, and significance. Some have only three parties, 
but others have more than 150. As of October 2000, for example, 
the United Nations had 189 members.\52\ Multilateral agreements 
cover more than 200 different subject areas ranging from Africa 
to World War II and agriculture to women's political 
rights.\53\ Many multilateral agreements establish 
international organizations, which in turn conclude bilateral 
agreements with the United States. The United States has 
concluded bilateral agreements with approximately 50 
international organizations.\54\ Some of these concern routine 
matters such as reimbursement of taxes of employees of these 
organizations, but others concern subjects of broader 
significance, such as the application of international atomic 
energy safeguards in the United States.
---------------------------------------------------------------------------
    \52\ The 189th member was Tuvalu.
    \53\ See Treaties in Force, 1999, pp. v-vii, 331-478.
    \54\ Compiled from Treaties in Force, 1999, pp. iii-v.
---------------------------------------------------------------------------
    Although multilateral executive agreements being concluded 
outnumber multilateral treaties, multilateral agreements form a 
far larger proportion of treaties than of executive agreements. 
Of 415 treaties that the United States concluded from 1980 
through 1999, 155 (37 percent) were multilateral; of 6,381 
executive agreements, 294 (4.6 percent) were multilateral.\55\
---------------------------------------------------------------------------
    \55\ Information from Office of the Assistant Legal Adviser for 
Treaty Affairs, September 29, 2000.
---------------------------------------------------------------------------
    Like executive agreements, the growing number of 
multilateral agreements brought new challenges to the role of 
the Senate in the treatymaking process. A major challenge was 
the pressure to approve a multilateral treaty without 
reservation because of the large number of nations that had 
been involved and the difficulty of renegotiation. Some 
multilateral treaties have contained an article prohibiting 
conditions. The Senate Foreign Relations Committee has said 
that its approval of these treaties should not be construed as 
a precedent for such clauses in future treaties. In the 
committee's view, ``The President's agreement to such a 
prohibition can not constrain the Senate's constitutional right 
and obligation to give its advice and consent to a treaty 
subject to any reservation it might determine is required by 
the national interest.'' \56\
---------------------------------------------------------------------------
    \56\ United Nations Framework Convention on Climate Change. S. 
Exec. Rept. 102-55 to accompany Treaty Doc. 102-38. October 1, 1992, p. 
15. See also Protocol on Environmental Protection to the Antarctic 
Treaty. S. Exec. Rept. 102-54 to accompany Treaty Doc. 102-22. 
September 22, 1992, p. 7.


        III. INTERNATIONAL AGREEMENTS AND INTERNATIONAL LAW \1\
---------------------------------------------------------------------------

    \1\ Prepared by Margaret Mikyung Lee, Legislative Attorney.
---------------------------------------------------------------------------
                              ----------                              

    Treaties are governed by international law and are a 
primary source of international law. They play a central role 
in the orderly conduct of relations among states. In order for 
treaties to perform this role, internationally recognized rules 
governing treaties have developed. Traditionally, treaty rules 
were established by custom and practice, and as a result they 
were not precisely defined.
    Under international law, the term ``treaty'' is applied to 
all binding international agreements between states or between 
states and international organizations. The term 
``international agreement,'' however, includes both binding and 
non-binding agreements. The term ``executive agreement'' is a 
creature of U.S. domestic law, not international law; 
``executive agreements'' that are binding international 
agreements are considered to be ``treaties'' in international 
law terminology.
    This chapter examines the definition of a treaty under 
international law and utilizes the 1969 Vienna Convention on 
the Law of Treaties and the Restatement (Third) of the Foreign 
Relations Law of the United States, as primary sources for such 
law. Because the United States has not ratified the convention, 
its international law status for non-parties is discussed. The 
chapter also reviews the criteria, under international law, 
which make an agreement binding; the principles which can 
render a binding agreement invalid; and the status of ``non-
binding'' agreements and statements under international law.

            A. The Vienna Convention on the Law of Treaties

                        international law status

    The Vienna Convention is in force internationally and has 
been ratified by or acceded to by 91 countries.\2\ The United 
States has signed but has not ratified the Vienna Convention 
and thus is not legally bound by its provisions.\3\ 
Nevertheless, the convention retains its status as a primary 
source of international law concerning treaties, even for non-
parties. The convention is partly a codification of customary 
international law, but also partly a development of 
international law and a reconciliation of different theories 
and practices; provisions in the latter category are binding 
only on the parties.\4\ Furthermore, the convention was not 
intended to be a complete codification of treaty law, and 
issues not covered by the convention continue to be covered by 
principles of customary international law.\5\ The Department of 
State describes the convention as a widely regarded ``major 
achievement in the development and codification of 
international law.'' \6\
---------------------------------------------------------------------------
    \2\ The Vienna Convention on the Law of Treaties, concluded at 
Vienna on May 23, 1969, entered into force for the countries that had 
ratified it on January 27, 1980, upon its ratification or accession by 
35 foreign countries. As of January 19, 2001, it had 46 signatories and 
91 parties. For the text of the Vienna Convention on the Law of 
Treaties and a list of parties thereto, see Appendix 5.
    \3\ Vienna Convention on the Law of Treaties, May 23, 1969, 1155 
U.N.T.S. 331, S. Exec. Doc. L, 92-1 (1971) (hereafter cited as Vienna 
Convention).
    \4\ I.A. Shearer, Starke's International Law 397 (11th ed. 1994); 
M.N. Shaw, International Law 561 (3d ed. 1991).
    \5\ Ibid.
    \6\ Statement regarding the Vienna Convention (unpublished) of Carl 
F. Salans, Acting Legal Adviser, Department of State, before the Senate 
Committee on Foreign Relations, August 3, 1972.
---------------------------------------------------------------------------
    In his letter transmitting the Vienna Convention to the 
President, Secretary of State William P. Rogers referred to it 
as ``* * * a generally agreed body of rules to govern all 
aspects of treaty making and treaty observance.'' He called the 
convention ``* * * an expertly designed formulation of 
contemporary treaty law * * * [that] * * * should contribute 
importantly to the stability of treaty relationships. * * * 
Although not in force, [for the United States] the Convention 
is already recognized as the authoritative guide to current 
treaty law and practice.'' (emphasis added.) \7\
---------------------------------------------------------------------------
    \7\ S. Exec. Doc. L, at 1.
---------------------------------------------------------------------------
    President Richard Nixon attributed similar status to the 
convention when, upon sending it to the Senate, he stated that:
        The growing importance of treaties in the orderly 
        conduct of international relations has made 
        increasingly evident the need for clear, well-defined, 
        and readily ascertainable rules of international law 
        applicable to treaties. I believe that the codification 
        of treaty law formulated by representatives of the 
        international community and embodied in the Vienna 
        Convention meets this need.\8\
---------------------------------------------------------------------------
    \8\ S. Exec. Doc. L, Letter of Transmittal. Despite the 
authoritative status of the convention under international law, in a 
few instances it appears to differ from customary international law and 
U.S. practice. For example, the convention definition of a treaty does 
not include oral agreements (Article 2) although according to the 
convention, its definition shall not affect the legal force of such 
agreements (Article 3(a)). Also, the convention permits a treaty to 
prohibit reservations (Article 19), which is contrary to the strong 
position taken by the Senate Foreign Relations Committee against the 
inclusion of provisions in agreements that would inhibit the power of 
the Senate to attach reservations. However, it has recommended advice 
and consent to some treaties containing such provisions, while 
affirming opposition to such provisions and declaring that approval of 
a treaty containing such a provision is not to be considered a 
precedent for acceptance of such provisions. See S. Exec. Rept. 105-25, 
at 18-19 (1998) (the World Intellectual Property Organization Copyright 
Treaty and Performances and Phonograms Treaty); S. Exec. Rept. 102-55, 
at 15 (1992) (the United Nations Framework Convention on Climate 
Changes); S. Exec. Rept. 102-54 (1992) (the Protocol on Environmental 
Protection to the Antarctic Treaty); S. Exec. Rept. 85-3, at 17 (1957) 
(Statute of International Atomic Energy Agency). Regarding differences 
between customary and conventional treaty law, see American Law 
Institute, Restatement (Third) of the Foreign Relations Law of the 
United States (1987) (hereafter cited as Rest. 3d). The Restatement 
accepts the Vienna Convention as, in general, constituting a 
codification of the customary international law governing international 
agreements, and therefore as foreign relations law of the United States 
even though the United States has not adhered to the convention. In a 
few instances, the convention moves beyond or deviates from accepted 
customary international law, and the Restatement therefore departs from 
the convention pending U.S. adherence to it. In a few other instances, 
the difference between the convention and customary law is a matter of 
emphasis and degree and can be accommodated within the text of the 
convention. Since the United States may become a party to the 
convention, the Restatement uses the text of the convention as a guide, 
with deviations indicated as appropriate in Comment and Reporters' 
notes. Rest. 3d, Vol. I, Part III, Introductory Note, at 145.

    The State Department's position on the status of the Vienna 
Convention largely accords with the positions of most members 
of the international community.\9\ This status stems in part 
from the concept that international treaties constitute one of 
the most significant sources of international law. For example, 
the Statute of the International Court of Justice directs the 
Court, when deciding disputes, to apply international law 
gleaned from a variety of sources beginning with international 
conventions.\10\
---------------------------------------------------------------------------
    \9\ The convention is the final product of a U.N. Conference on the 
Law of Treaties. The International Law Commission, which initially 
drafted the convention, was established to implement Article 13 of the 
U.N. Charter, which called for the General Assembly to initiate studies 
and make recommendations for purposes that include the ``progressive 
development of international law and its codification.'' Article 1 of 
the International Law Commission's statute charged it with this task. 
See G.A. Res. 174 (II), U.N. GAOR, 2d Sess., November 21, 1947. Members 
of the U.S. Senate were apparently not participants in, and not 
consulted on, the Commission's drafting or adoption of its final draft 
text of the Vienna Convention. However, as the Commission's membership 
consists of individual members and not government delegations, no 
requirement for either formal or informal Senate involvement existed at 
this stage of the convention's formulation.
    \10\ Article 38 of the Statute of the International Court of 
Justice, June 26, 1945. Other sources of international law cited by 
this Article include international custom and general principles of law 
recognized by civilized nations. Domestic judicial decisions and the 
teachings of judicial scholars are named as subsidiary means for the 
determination of rules of international law.
---------------------------------------------------------------------------
    Multilateral agreements, of which the Vienna Convention is 
a prime example, are not only an evidentiary source of 
recognized customary international law. They may also 
contribute to the progressive development of international law 
by expressing rules which may not yet be fully recognized by 
the international community. The International Court of Justice 
has on occasion noted that provisions contained in such 
agreements may be binding on a state as customary law even if a 
state is not a party to the agreement.\11\ A determination of 
whether a given provision of such an agreement expresses 
customary law may entail a consideration of (1) whether the 
provision was intended to codify settled law at the time of 
drafting, (2) whether an evolving rule of settled law expressed 
by the provision had become settled customary law by the time 
the agreement was concluded or entered into force, and finally, 
(3) whether a rule, which was experimental or evolving when the 
agreement expressing it in a provision was concluded or entered 
into force, has become customary international law with the 
passage of time since the agreement's conclusion or entry into 
force.\12\ So the Vienna Convention contains rules governing 
treaty relationships that are recognized as general principles 
of international law by the executive and judicial branches of 
the United States, as well as by the international community, 
even though the United States has not ratified it.\13\ Senate 
advice and consent to future treaties will, as a result, be 
influenced by the Vienna Convention, even if the United States 
does not become a party to it.
---------------------------------------------------------------------------
    \11\ See North Sea Continental Shelf cases (F.R.G. v. Den., F.R.G. 
v. Neth.), 1969 ICJ 3, 28-29, 37-46, 53 (Feb. 20).
    \12\ Ibid.
    \13\ See, for example, Weinberger v. Rossi, 456 U.S. 25, 29 note 5 
(1982) (citing the draft Rest. 3d, Introductory Note 3, p. 74 (Tent. 
Draft No. 1, Apr. 1, 1980)). For additional discussion, see Maria 
Frankowska, The Vienna Convention on the Law of treaties before United 
States Courts, 28 Va. J. Int'l L. 281-391 (1988).
---------------------------------------------------------------------------

                    senate action on the convention

    The Vienna Convention on the Law of Treaties was sent to 
the Senate on November 22, 1971, and remains in committee. The 
Senate Committee on Foreign Relations ordered reported a 
Resolution of Advice and Consent to the Ratification of the 
Convention on September 7, 1972, subject to an understanding 
and interpretation. The Department of State opposed the wording 
of the understanding, and the convention was reconsidered in 
executive session by the committee, but not reported out.\14\
---------------------------------------------------------------------------
    \14\ See U.S. Department of State, Digest of United States Practice 
in International Law, 1974, 195-198 (1975) (hereafter cited as Digest, 
1974).
---------------------------------------------------------------------------
    The wording proposed by the committee read:
        subject to the interpretation and understanding, * * * 
        that, in accordance with Article 46 of the Convention 
        [relating to a state's right to invalidate a treaty if 
        its consent was obtained by a manifest violation of an 
        internal law of fundamental importance], since Article 
        2, Section 2, of the United States Constitution states 
        that the President ``shall have power, by and with the 
        advice and consent of the Senate, to make treaties, 
        provided two-thirds of the Senators present concur,'' 
        it is a rule of internal law of the United States of 
        fundamental importance that no treaty (as defined by 
        paragraph 1(a) of Article 2 of the Convention) is valid 
        with respect to the United States, and the consent of 
        the United States may not be given regarding any such 
        treaty, unless the Senate of the United States has 
        given its advice and consent to such treaty, or the 
        terms of such treaty have been approved by law, as the 
        case may be.\15\
---------------------------------------------------------------------------
    \15\ Ibid., at 195 (comments and emphasis added).

    Acceptance of this wording would have achieved two 
objectives desired by the Senate committee. First, it would 
have made clear that the Vienna Convention does not establish 
an international law rule which could hold the United States 
bound to a treaty which a President had signed, but which the 
Senate had not accepted.\16\ Furthermore, it would have made 
clear that an international instrument is voidable if concluded 
by a President in the form of an executive agreement that 
should have been treated either as a treaty under Article II, 
Section 2, to which the Senate should have consented, or 
presumably a congressional-executive agreement to which both 
Houses of Congress should have agreed. The wording of the 
proposed Senate interpretation would seem to make agreements 
concluded by a President, on his own independent constitutional 
authority, subject to Senate advice and consent. The wording, 
therefore, could be seen as severely limiting a President's 
independent authority to make binding and firm international 
commitments.
---------------------------------------------------------------------------
    \16\ The convention does not definitively resolve this issue. See 
later discussion in this chapter entitled: ``Invalidation by Violation 
of Domestic Law Governing Treaties.''
---------------------------------------------------------------------------
    The wording of the Senate's interpretation was not 
acceptable to the executive branch because the term ``treaty'' 
under the Vienna Convention includes agreements which are not 
``treaties'' under Article II, Section 2, of the 
Constitution.\17\ In response to the Senate's proposed 
interpretation and understanding, the Department of State 
suggested that the Senate's intent could be expressed along the 
following lines: ``with the understanding and interpretation 
that ratification of the Convention by the United States does 
not give any international agreement of the United States any 
internal standing under the Constitution of the United States 
that it would not have in the absence of the Convention.'' \18\
---------------------------------------------------------------------------
    \17\ This is the part of the U.S. Constitution which requires 
Senate advice and consent to treaties.
    \18\ See Digest, 1974, supra note 14, at 197.
---------------------------------------------------------------------------
    The Department of State, in comments on a subsequently 
proposed Senate interpretation suggested by the Chief of Staff 
of the Foreign Relations Committee, highlighted the issue as 
follows:
        * * * there is a very considerable difference between 
        the use of the term ``treaty'' in the Vienna Convention 
        and the generally accepted use of that term in the 
        internal law of the United States.
        * * * the term ``treaty'' under the internal law of the 
        United States is restricted to the term as used in 
        Article II, Section 2, of the Constitution.
        * * * the term treaty as used in our internal law does 
        not include international agreements made pursuant to a 
        treaty, international agreements authorized by 
        Congress, or international agreements made pursuant to 
        the President's constitutional authority [emphasis 
        added].\19\
---------------------------------------------------------------------------
    \19\ Letter dated January 31, 1974, Digest, 1974, supra note 14, at 
196. The text of the alternative interpretation and understanding, 
proposed on November 8, 1973, by Carl Marcy, the Chief of Staff of the 
Foreign Relations Committee at the time, would make any resolution of 
ratification ``subject to the interpretation and understanding, which 
understanding and interpretation are made a part and condition of the 
resolution of ratification, that within the meaning of Article 46 of 
the Convention, Article 2, Section 2, of the United States 
Constitution, stating that the President `shall have power, by and with 
the advice and consent of the Senate, to make treaties, provided two-
thirds of the Senators present concur,' is a rule of the internal law 
of the United States of fundamental importance'' [emphasis added].

    In 1984, Robert Dalton, Assistant Legal Adviser for Treaty 
Affairs, explained the department's objection to the 
interpretation and understanding proposed by the committee in 
1973 in the following way:
        * * * The Department was concerned that other countries 
        might conclude that, by making the interpretation and 
        understanding, the United States was intending to 
        abandon the practice of making executive agreements * * 
        *, or was attempting to avoid application of the 
        principle of pacta sunt servanda to those agreements by 
        reserving the possibility of invoking article 46 of the 
        Vienna Convention if it found the provisions of any 
        such agreement to be unduly onerous.\20\
---------------------------------------------------------------------------
    \20\ Robert E. Dalton, The Vienna Convention on the Law of 
Treaties: Consequences for the United States, in Proceedings of the 
American Society of International Law at its 78th Annual Meeting 277 
(1984).

    He stressed that the Vienna Convention had already 
influenced U.S. treaty practice in a number of ways, and that 
not being a party sometimes made it difficult to invoke the 
convention's rules in treaty relations with states that were 
parties.
    In the same forum, two former chief counsels of the Foreign 
Relations Committee supported becoming party to the convention, 
although both appeared to favor some kind of understanding to 
deal with the executive agreement issue. Frederick Tipson 
stressed the importance for the United States to follow through 
on negotiations after they had been concluded and treaties 
signed. But he also cited the need to clarify a number of 
important domestic constitutional procedures. In his view ``the 
United States could not afford to leave in limbo a series of 
important issues which remained outstanding between the 
Congress and the executive branch in the area of international 
agreements. Some effort should be made to remedy the situation 
by attempting to arrive at a consensus on several of these 
issues.'' \21\ Michael Glennon said the benefits of 
ratification outweighed the costs, and favored a ``stand-still 
provision'' that nothing in the convention should be construed 
as conferring any authority upon the President under U.S. law 
that he would not have had in its absence, along the lines of 
the earlier State Department proposal.\22\
---------------------------------------------------------------------------
    \21\ Ibid., at 283-284.
    \22\ Ibid., at 292.
---------------------------------------------------------------------------
    In 1986 the Foreign Relations Committee again held a 
hearing on the Vienna Convention on the Law of Treaties as well 
as several other treaties. Mary V. Mochary, Deputy Legal 
Adviser of the Department of State, spoke of the advantages of 
becoming a party to the treaty. She stressed the wide support 
for the convention in the academic and legal community, and the 
advantages of having a precise statement of customary law. She 
added, ``Moreover, the Convention includes procedural 
mechanisms for settlement of disputes that do not reflect 
customary law and cannot be invoked by the United States until 
it becomes a party to the convention.'' \23\
---------------------------------------------------------------------------
    \23\ Private Law Treaties: Hearing on S. Exec. Doc. L, 92-1, S. 
Treaty Docs. 97-12, 98-9, 98-27, 98-29, 99-11,, and S. 1828 Before the 
Senate Comm. on Foreign Relations, 99th Cong. (1986) (stenographic 
transcript of Hearing, June 11, 1986) (hereafter cited as Vienna 
Convention, 1986 hearings).
---------------------------------------------------------------------------
    On the issue of executive agreements, Arthur Rovine, a 
former Assistant Legal Adviser on Treaty Affairs for the 
Department of State and representing the American Bar 
Association, expressed the view that the Vienna Convention had 
fallen ``victim in the post-Vietnam and post-Watergate period 
to an attempt to limit the President's constitutional and 
statutory power to enter into international executive 
agreements.'' But in his view these were old issues having no 
bearing on the convention, and had been resolved by the Case-
Zablocki Act of 1972 on the reporting of all international 
executive agreements to Congress and related procedures on 
consultation on the form of an agreement.\24\
---------------------------------------------------------------------------
    \24\ Vienna Convention, 1986 hearings. For discussion of the Case-
Zablocki Act, see Chapter X.
---------------------------------------------------------------------------
    At the hearing, Assistant Legal Adviser for Treaty Affairs 
Robert Dalton specified that the administration favored Senate 
advice and consent to the convention without reservation or 
understanding. In answer to supplementary written questions 
from the Foreign Relations Committee, the State Department 
reiterated its objections to the interpretation and 
understanding that had been proposed in 1972 by Senator Case. 
It argued that the proposed understanding would hamper the 
ability of the President to resolve international differences 
or undertake international cooperation by concluding agreements 
quickly, and that it would put the United States at a 
disadvantage in international negotiations by depriving it of 
the ability to make agreements with immediate binding effect to 
obtain and formalize concessions from other governments.\25\
---------------------------------------------------------------------------
    \25\ Vienna Convention, 1986 hearings. Answers to questions 
submitted by J. Edward Fox, Assistant Secretary, Legislative and 
Intergovernmental Affairs, July 24, 1986.
---------------------------------------------------------------------------
    The committee also submitted the question of whether the 
administration believed the U.S. constitutional requirement for 
advice and consent to be ``a rule of internal law of 
fundamental importance.'' The department replied the 
administration believed it was ``a rule of internal law of 
fundamental importance,'' enshrined in the Constitution. But, 
the department said, other relevant rules enshrined in the 
Constitution were also rules of fundamental importance, 
including the President's power as Commander-in-Chief, the 
executive power clause, and clauses relating to the reception 
of ambassadors and taking care that laws be faithfully 
executed. The department continued:
        If the resolution of advice and consent is to refer to 
        one rule of internal law of fundamental importance 
        relating to the conclusion of treaties as that term is 
        used in the Vienna Convention on the Law of Treaties, 
        it should also refer to the other relevant rules of 
        internal law. To draft such an understanding and 
        interpretation would require the preparation of a gloss 
        on the Constitution on which history shows it would be 
        exceedingly difficult for the executive branch and the 
        Congress as a whole promptly to agree. To fail to 
        include all the relevant rules would confuse foreign 
        countries and make it more difficult for the President 
        to exercise the full range of powers relating to 
        foreign affairs accorded to him under the 
        Constitution.\26\
---------------------------------------------------------------------------
    \26\ Ibid.

    Thus the Vienna Convention has become caught up in a long-
term controversy on the roles of the legislative and executive 
branches in the making of international agreements.

                          B. Treaty Definition

    The Vienna Convention establishes a comprehensive 
definition of a treaty in international law without prejudice 
to differing uses of the term ``treaty'' in the domestic laws 
of various states.\27\
---------------------------------------------------------------------------
    \27\ Vienna Convention, Art. 2, Sec. 2.
---------------------------------------------------------------------------
    Under the definition of a treaty provided by the Vienna 
Convention,
        treaty means an international agreement concluded 
        between states in written form and governed by 
        international law, whether embodied in a single 
        instrument or in two or more related instruments and 
        whatever its particular designation.\28\
---------------------------------------------------------------------------
    \28\ Vienna Convention, Art. 2, Sec. 1(a). Note also that the U.N. 
Charter employs the term ``treaty'' but does not define it. The 
charter, in Article 102, provides ``Every treaty and every 
international agreement entered into by any Member of the United 
Nations * * * shall * * * be registered with the Secretariat and 
published by it.'' Note further that the U.N. Secretariat ``follows the 
principle that it acts in accordance with the position of the Member 
States submitting an instrument for registration that so far as that 
party is concerned the instrument is a treaty or an international 
agreement within the meaning of Art. 2. Registration of an instrument 
submitted by a Member State, therefore, does not imply a judgment by 
the Secretariat on the nature of the instrument, the status of a party, 
or any similar question.'' See Leland Goodrich, Edvard Hambro, and Anne 
Patricia Simons, Charter of the United Nations 612 (3d ed. 1969).

    The Vienna Convention applies the term ``treaty'' to formal 
agreements designated as treaties and also to other agreements 
in simplified form, such as exchanges of notes. While the 
convention does not encompass unwritten agreements or 
agreements concluded with or by international organizations, it 
does not affect the validity of such agreements under 
international law.\29\
---------------------------------------------------------------------------
    \29\ Vienna Convention, Art. 3.
---------------------------------------------------------------------------

           C. Criteria for a Binding International Agreement

    A paramount principle of international law is pacta sunt 
servanda--that treaties must be kept. Treaties, therefore, are 
binding under international law. However, in the conduct of 
international relations, nations conclude business contracts or 
enter into understandings that fall short of being binding 
agreements with the status of international treaties.\30\ It 
is, therefore, vital to understand the elements that are 
necessary for an agreement to be considered a treaty under 
international law. Important criteria in determining this 
include: (1) the intention of the parties to be bound under 
international law, (2) the significance of the agreement, (3) 
the specificity of the agreement, and (4) the form of the 
agreement.
---------------------------------------------------------------------------
    \30\ The Department of State has compiled guidelines for internal 
purposes for determining the elements of a legally binding 
international agreement. The gist of these guidelines is: (1) The 
parties to an agreement must intend to be bound under international 
law. (2) The agreement must be of international significance and not 
deal with trivial matters. (3) The obligations undertaken must be 
clearly specified and be objectively enforceable. (4) The agreement 
must have two or more parties. (5) The agreement will preferably use a 
customary form. If not, content and context must reveal a legally 
binding intent. See Memorandum of March 12, 1976, from Monroe Leigh, 
Legal Adviser, Department of State, to all key Department personnel, 
reprinted in U.S. Department of State, Digest of United States Practice 
in International Law, 1976, 263-267 (1977) (hereafter cited as 
Department of State Memo of March 12, 1976). The memo stated that for 
``purposes of implementing legal requirements with respect to 
publication of international agreements and transmittal of 
international agreements to Congress, the Legal Adviser applies the * * 
* [above] criteria in deciding what constitutes an international 
agreement.'' These guidelines were subsequently incorporated in 
regulations designed to assist agencies in determining if agreements 
constitute international agreements within the meaning of the Case-
Zablocki Act. See 22 CFR part 181. The text of the regulations are 
contained in Appendix 3 of this volume.
---------------------------------------------------------------------------

      intention of the parties to be bound under international law

    So far as the U.S. State Department is concerned, treaties 
cannot be concluded unless the parties involved intend their 
acts to be legally binding.\31\ Documents that are intended to 
invoke purely political or moral obligations are not, 
therefore, treaties under international law. The Final Act of 
the Conference on Security and Cooperation in Europe (CSCE) or 
``Helsinki Accords'' adopted August 2, 1975, and most of the 
subsequent agreements concluded by the CSCE fall into this 
category.\32\ For example, the Vienna Document of March 4, 
1992, states in paragraph 156: ``The measures adopted in this 
document are politically binding and will come into force on 1 
May 1992.'' \33\
---------------------------------------------------------------------------
    \31\ Department of State Memo of March 12, 1976, supra note 30.
    \32\ Conference on Cooperation and Security in Europe: Final Act, 
Helsinki, August 1, 1975, 14 I.L.M. 1292 (1975); 73 Dep't St. Bull. 323 
(1975) (hereafter cited as Helsinki Accords).
    \33\ Vienna Document 1992 of the Negotiations on Confidence and 
Security-Building Measures Convened in Accordance with the Relevant 
Provisions of the Concluding Document of the Vienna Meeting of the 
Conference on Security and Cooperation in Europe, 3 Dep't St. Dispatch 
Supp. (July 1992).
---------------------------------------------------------------------------
    Furthermore, a binding international agreement must be 
subject to international law and not the law of another legal 
system. For example, if an agreement specifies that it is to be 
governed by the law of a particular nation, the mention of 
governing domestic law would probably be construed as negating 
an intent to be bound by international law. To illustrate this 
point, the State Department notes that a (hypothetical) foreign 
military sales contract, specifying that it is governed by the 
law of the District of Columbia, is not a binding international 
agreement.\34\ Although many international agreements are 
silent as to which law governs them, the intent of the makers 
normally is that international law apply.\35\
---------------------------------------------------------------------------
    \34\ Department of State Memo of March 12, 1976, supra note 30 at 
265.
    \35\ Ibid.
---------------------------------------------------------------------------
    This element--that the parties must intend an agreement to 
be legally binding under international law--is incorporated 
into the definition of an international agreement in the 
Restatement (Third) of the Foreign Relations Law of the United 
States. The Restatement, while lacking the force of formally 
enacted law, has been cited as evidence of the law in the 
decisions of U.S. courts.\36\ The Restatement defines an 
international agreement in the following manner:
---------------------------------------------------------------------------
    \36\ See, for example, Dames & Moore v. Regan, 453 U.S. 654, 680 
(1981). Rest. 3d, Sec. 301(1) (1987). The Restatement (Third) was 
adopted and promulgated by the American Law Institute (a private 
organization) on May 14, 1986. The ``Restatement represents the opinion 
of the American Law Institute as to the rules that an impartial 
tribunal would apply if charged with deciding a controversy in 
accordance with international law.'' Ibid., at 3.
---------------------------------------------------------------------------
        ``International agreement'' means an agreement between 
        two or more states or international organizations that 
        is intended to be legally binding and is governed by 
        international law; * * *.\37\
---------------------------------------------------------------------------
    \37\ Rest. 3d, Sec. 301(1).
---------------------------------------------------------------------------

                              significance

    To have the status of a treaty under international law, an 
agreement should concern itself with significant matters. It 
cannot deal with trivial matters alone, even if they are 
couched in legal language and form.\38\ The significance of an 
agreement is frequently characterized as a matter of degree. 
For example, ``a promise to sell one map to a foreign nation is 
not an international agreement; a promise to sell one million 
maps probably is * * *.'' \39\ The exact point, however, 
between 1 and 1 million maps at which the transaction becomes 
an international agreement is difficult to determine. Since 
there are no detailed guidelines to assist in deciding the 
level of significance needed, the answer is largely a matter of 
judgment within the context of a particular transaction.\40\
---------------------------------------------------------------------------
    \38\ Department of State Memo of March 12, 1976, supra note 30.
    \39\ Ibid.
    \40\ See Arthur Rovine, Separation of Powers and International 
Agreements, 52 Ind. L. J. 402-403 (1950). Note also that the Department 
of State provides some guidance in a letter of September 6, 1973, from 
Acting Secretary of State Kenneth Rush to Secretary of Defense James R. 
Schlesinger. This letter requires transmittal to the State Department 
[for possible transmittal to the Congress] of ``* * * any agreements of 
political significance, any that involve a substantial grant of funds, 
any involving loans by the United States or credits payable to the 
United States, any that constitute a commitment of funds that extends 
beyond a fiscal year or would be a basis for requesting new 
appropriations, and any that involve continuing or substantial 
cooperation in the conduct of a particular program or activity, such as 
scientific, technical, or other cooperation, including the exchange or 
receipt of information and its treatment.'' For the full text of the 
letter, see Congressional Oversight of Executive Agreements: Hearing 
Before the Subcommittee on Separation of Powers, Senate Committee on 
the Judiciary, 94th Cong. 101 (1975). As noted above, the meaning of 
the term ``treaty'' under the U.S. Constitution and domestic laws is 
narrower than its meaning under international law. A number of 
``executive agreements'' under domestic laws would qualify as treaties 
under international law, but not all agreements concluded by the 
executive branch have the significance sufficient to be considered 
treaties under international law. The guidelines in the Department of 
State letter are meant to enable executive branch agencies to determine 
which executive agreements qualify as treaties under international law 
and therefore must be reported to Congress.
---------------------------------------------------------------------------

                              specificity

    A treaty should clearly and specifically describe the 
obligations legally assumed by the parties.\41\ This requires 
that the terms setting out the obligations assumed by parties 
be worded specifically, so that an observer can determine 
fairly objectively whether a party is legally bound. Thus, 
international diplomatic undertakings which do not specifically 
describe precise legal obligations, are not legally binding. An 
example would be a promise ``to help develop a more viable 
economic system.'' In contrast, a promise to deliver 1,000 
tractors of a specified type, for a specified amount of money, 
to be delivered at a specified place, on a specific date, sets 
forth the definable obligations necessary to make such a 
promise legally binding.
---------------------------------------------------------------------------
    \41\ Department of State Memo of March 12, 1976, supra note 30, at 
266.
---------------------------------------------------------------------------
    This does not mean, however, that every provision of a 
treaty must meet this criterion of specificity in order for the 
treaty to be legally binding. In fact, treaties often contain 
individual clauses which describe in non-specific terms 
obligations assumed by the parties.

                         form of the agreement

    Form is not central to the validity of a binding 
international agreement, but it may reflect the intention of 
the parties to conclude an agreement, or something less than an 
agreement.\42\ Thus, in all probability a formal document 
entitled ``agreement''--one with final clauses, signature 
blocks, entry into force dates, and dispute settlement 
provisions--would reflect a general intent to conclude an 
international agreement.
---------------------------------------------------------------------------
    \42\ Ibid. Also, the International Court of Justice has 
consistently stated that form ``* * * is not a domain in which 
international law imposes any special or strict requirements.'' Nuclear 
Tests case (Austl. v. Fr.), 1974 I.C.J. 253, 267-268 (Dec. 20).
---------------------------------------------------------------------------
    It is emphasized that the substance, and not the form, of 
the agreement determines whether it is a treaty. Occasionally, 
however, the failure to follow a customary form to conclude an 
agreement may constitute evidence of an intent not to be 
legally bound. In such cases, it is important to determine 
whether the general content of the agreement and the context of 
its making reveal an intent to be legally bound; if so, the 
lack of a customary or proper form will not be decisive. 
Moreover, if an agreement is the product of formal 
international negotiations by diplomats, this may be construed 
as supporting evidence of an intent to be legally bound.\43\
---------------------------------------------------------------------------
    \43\ Department of State Memo of March 12, 1976, supra note 30 at 
266.
---------------------------------------------------------------------------
    Inasmuch as the substance, not the form, governs the 
validity of an international agreement, it is possible to have 
binding agreements that are not in writing, although in 
practice this rarely occurs. Hence, ``whether a statement is 
made orally or in writing makes no essential difference * * 
*.\44\ The Vienna Convention does not apply to binding oral 
agreements, but as a matter of practice, international 
agreements are usually in written form.\45\
---------------------------------------------------------------------------
    \44\ Nuclear Tests cases at 267. Although the Vienna Convention 
applies only to instruments in written form (Art. 2(1)(a)), it does not 
affect the validity of unwritten agreements (Art 3). Under customary 
international law, oral agreements are just as binding as written ones. 
See Legal Status of Eastern Greenland, 1933 P.C.I.J. (ser. A/B) No. 53, 
at 71. Furthermore, the text of the Case-Zablocki Act, Pub. L. No. 92-
403, 86 Stat. 619 (1972), reprinted as amended at 1 U.S.C. 112b(a), 
specifically requires transmittal to Congress, of ``the text of any 
oral international agreement.''
    \45\ Rest. 3d, Sec. 301, Comment b; and Vienna Convention, Art. 
2(1)(a) and Art. 3.
---------------------------------------------------------------------------
    A wide variety of descriptive terms may be used to describe 
international agreements, but these terms do not in themselves 
determine whether an agreement has the status of a treaty. They 
may, nevertheless, be considered a factor among others in 
determining whether the parties intend to create an 
internationally legally binding agreement. Relevant terms 
include treaty, convention, protocol, declaration, agreement, 
act, covenant, statute, concordat, exchange of notes, 
memorandum of agreement, memorandum of understanding, modus 
vivendi or charter.\46\ Often there is no apparent reason for 
the use of one title as opposed to another, and the choice is 
frequently the result of non-legal considerations.
---------------------------------------------------------------------------
    \46\ Rest. 3d, Sec. 301, Comment a.
---------------------------------------------------------------------------

  D. Limitations on Binding International Agreements and Grounds for 
                              Invalidation

    International law does not limit the subject matter of 
international agreements. However, many theorists of 
international law argue that certain principles of 
international law cannot be violated by a treaty without 
rendering a treaty void. Thus, it would be widely agreed that a 
pact of aggression between two states against a third state 
could not have the force of international law as it would 
violate norms in the U.N. Charter prohibiting the use of force 
except in self defense.\47\ Other circumstances enable a 
signatory to invalidate a treaty if it chooses to do so. For 
example, an error made by a state concluding a treaty, which 
formed an essential basis of its consent to be bound, would 
permit that state to invoke the error to invalidate the treaty.
---------------------------------------------------------------------------
    \47\ U.N. Charter, Art. 2, Sec. 4, and Art. 51. See Georg 
Schwarzenberger and E.D. Brown, A Manual of International Law 24 (6th 
ed. 1976).
---------------------------------------------------------------------------
    If principles are violated which make a treaty void, the 
treaty cannot be in effect--or ever have been in effect--and 
there can be no question of seeking redress for violating it. 
However, some grounds for invalidity are voidable, that is, the 
aggrieved state has the option of maintaining the treaty in 
force or declaring it invalid.

          invalidation by fraud, corruption, coercion or error

    Consent is necessary for a state to be bound by a treaty 
\48\ and it may be expressed in many ways.\49\ Since consent 
implies a voluntary decision, it can be negated by coercion, 
fraud, and corruption of agents who are giving authorized 
consent for their state. Consent of a state to be bound by a 
treaty may also be negated by error.\50\
---------------------------------------------------------------------------
    \48\ Vienna Convention, Art. 13, and Rest. 3d, Sec. 12(1).
    \49\ Vienna Convention, Art. 11-18, and Rest. 3d, Sec. 312(1).
    \50\ Vienna Convention, Art. 48, and Rest. 3d, Sec. 331(1)(a).
---------------------------------------------------------------------------
    Current international rules relating to coercion, fraud and 
corruption as a basis for invalidating consent to a treaty have 
been summarized in the Restatement (Third) as follows:
        (1) A state may invoke only the following grounds to 
        invalidate its consent to be bound by an agreement:
                (a) an error as to a fact or situation which 
                was assumed by that state to exist at the time 
                of the agreement and which formed the basis of 
                its consent to be bound.\51\
---------------------------------------------------------------------------
    \51\ Rest. 3d, Sec. 331. The wording of this section essentially 
follows that of the Vienna Convention which lists ``error'' as a ground 
that may be invoked to invalidate consent to be bound (Art. 48). Such 
error must relate ``to a fact or situation which was assumed by that 
State to exist at the time when the treaty was concluded and formed an 
essential basis of its consent to be bound.'' However, under the Vienna 
Convention, a state may not invoke error if it contributed to the error 
by its own conduct or if circumstances were such as to put the state on 
notice of a possible error (Art. 48(2)). Also, error in the wording of 
an agreement, such as a typographical error, is not a ground for 
invalidating it; special procedures are established for the correction 
of such errors. Vienna Convention, Articles 48(3) and 79. See Rest. 3d, 
Sec. 331, Comment b.
---------------------------------------------------------------------------
                (b) the fraudulent conduct of another 
                negotiating state that induced its consent; or
                (c) the corruption of the state's 
                representative by another negotiating state.
        (2) An international agreement is void
                (a) if a state's consent to the agreement was 
                procured by the coercion of the state's 
                representative, or by the threat or use of 
                force against the state in violation of the 
                principles of international law embodied in the 
                Charter of the United Nations; * * *.\52\
---------------------------------------------------------------------------
    \52\ Rest. 3d, Sec. 331. This section combines and follows the rule 
stated in the Vienna Convention in Arts. 49-53.
---------------------------------------------------------------------------

      invalidation by conflict with a peremptory norm of general 
                     international law (jus cogens)

    Traditionally, many theorists of general international law 
have argued that there exists a jus cogens or superior law 
which holds a special status internationally and which cannot 
be violated by a treaty.\53\ Although legal theorists differ as 
to which international rules currently have the status of jus 
cogens, they tend to agree that attainment of this status is 
largely the result of an evolutionary process. Notwithstanding 
uncertainty as to what rules are, and what rules may become, 
jus cogens, the Vienna Convention accords recognition to the 
concept of such rules.
---------------------------------------------------------------------------
    \53\ See Georg Schwarzenberger and E.D. Brown, A Manual of 
International Law 24 (6th ed. 1976).
---------------------------------------------------------------------------
    The principle of jus cogens \54\ holds that an 
international agreement is void if at its inception it 
conflicts with a peremptory norm of general international 
law.\55\ The Vienna Convention in Article 53 defines a 
``peremptory norm of general international law'' as:
---------------------------------------------------------------------------
    \54\ Compelling law which is binding on parties regardless of their 
will and will not yield to other laws.
    \55\ Vienna Convention, Art. 53, Rest. 3d, Sec. 331(2)(b) and 
Comment e.
---------------------------------------------------------------------------
        * * * a norm from which no derogation is permitted and 
        which can be modified only by a subsequent norm of 
        general international law having the same character.

    These norms are rules commonly accepted as holding a 
superior status and which therefore cannot be affected by a 
treaty. Thus, a norm cannot be jus cogens unless the 
international community accepts both the norm and its 
peremptory character. Under the convention, the emergence of a 
new peremptory norm voids any treaty provision violating the 
new norm.\56\
---------------------------------------------------------------------------
    \56\ However, the emergence of a new rule of jus cogens will not 
have retroactive effect on the validity of a treaty. Accordingly, the 
invalidity will only attach from the time the new rule is established. 
See Vienna Convention, Art. 64; International Law Commission Report, 61 
Am. J. Int'l L. 412 (1967).
---------------------------------------------------------------------------
    It is accepted that certain obligations of member states 
under the U.N. Charter constitute jus cogens.\57\ Thus, the 
example provided earlier, of an aggression pact between two 
states against a third which provides that their two armies 
will jointly invade the third state, subjugate it, and jointly 
rule it, is generally accepted as violating a jus cogens rule 
against the use of aggressive force.\58\ There is, however, 
substantial uncertainty as to what other norms are peremptory 
and therefore constitute jus cogens. Some interpretations of 
peremptory norms might include ``rules prohibiting genocide, 
slave trade and slavery, apartheid and other gross violations 
of human rights, and perhaps attacks on diplomats.'' \59\
---------------------------------------------------------------------------
    \57\ Rest. 3d, Sec. 331, Reporters' Note 5. Art. 103 of the U.N. 
Charter provides that if there is a conflict between member obligations 
under the Charter and their obligations under another international 
agreement, the Charter shall prevail.
    \58\ See Rest. 3d, Sec. 102, Comment k and Reporters' Note 6.
    \59\ See Rest. 3d, Sec. 702(a)-(f), Comment n and Reporters' Note 
6.
---------------------------------------------------------------------------
    When a treaty at its inception is void because it conflicts 
with a peremptory norm (Article 53), the parties are expected 
to comply with the norm (Article 71). If a treaty becomes void 
because a new overriding norm has emerged (Article 62), the 
parties are released from any further obligation to 
perform.\60\
---------------------------------------------------------------------------
    \60\ Vienna Convention, Art. 71, Comment a.
---------------------------------------------------------------------------
    Because uncertainty may exist as to whether a particular 
norm constitutes a rule of jus cogens, the issue of who decides 
such claims when nations invoke Article 53 in an attempt to 
invalidate agreements becomes of paramount importance. Thus, 
the U.S. Government, in its comments on an earlier Draft 
Article 37 of the International Law Commission, similar to 
Article 53, relating to the emergence of new norms, noted that 
such an article ``could not be accepted unless agreement is 
reached as to who is to define a new peremptory norm and to 
determine how it is to be established.'' \61\ The text of the 
article was amended by the conference in such a way as to give 
the United States, in the view of State Department officials, a 
veto over creation of a new peremptory norm. The final text 
defined such a norm as one ``accepted and recognized by the 
international community of States as a whole.''
---------------------------------------------------------------------------
    \61\ See Sir Humphrey Waldock, Special Rapporteur, Fifth Report on 
the Law of Treaties, U.N. Doc. A/CN.4/183 and Add.1-4, reprinted in 
[1966] 2 Y.B. Int'l L. Comm'n 1, 21, U.N. Doc. A/CN.4/SER.A/1966/Add.1.
---------------------------------------------------------------------------
     In addition, under another article, any party to a dispute 
arising under the jus cogens article may invoke the 
jurisdiction of the International Court of Justice unless the 
parties agree to submit to arbitration.\62\ This International 
Court dispute settlement provision, it is argued, protects the 
United States against arbitrary jus cogens claims which other 
states might attempt to use as a basis for invalidating 
treaties with the United States. The Senate on occasion has 
expressed concern about treaty provisions requiring submission 
of disputes to arbitration or the International Court, but on 
numerous occasions has given unqualified approval to such 
treaties.\63\
---------------------------------------------------------------------------
    \62\ Vienna Convention, Art. 66. See also comments of Secretary of 
State William P. Rogers, S. Exec. Doc. L, supra note 3, at 7.
    \63\ For further discussion of dispute settlement procedures, see 
Chapter VIII below. The accession of the Tunisian Government to the 
Vienna Convention on the Law of Treaties requires the consent of all 
parties in jus cogens disputes prior to Tunisian submission of such 
disputes to the International Court of Justice for a decision. See 
Multilateral Treaties Deposited with the U.N. Secretary General. Status 
of 31 December 1981, U.N. Doc. ST/LEG/SER.E/a, at 622. This type of 
declaration is made with considerable frequency in connection with 
other multilateral conventions containing International Court of 
Justice dispute settlement clauses.
---------------------------------------------------------------------------

      invalidation by violation of domestic law governing treaties

     In the world community, constitutional limitations 
affecting the exercise of the treatymaking power differ from 
nation to nation.\64\ International law generally provides that 
a state may not invalidate a treaty because of claims that its 
consent to be bound has been expressed in violation of domestic 
law governing its competence to conclude a treaty. Article 
46(1) of the Vienna Convention, permits a state to invalidate a 
treaty if a violation of domestic law was ``manifest and 
concerned a rule of its internal law of fundamental 
importance'' [emphasis added]. Article 46(2) further provides 
that a violation is manifest ``if it would be objectively 
evident to any State conducting itself in the matter in 
accordance with normal practice and in good faith.''
---------------------------------------------------------------------------
    \64\ For example, the British system has been described in the 
following way: ``It is a truism that in the United Kingdom it is the 
Crown alone, that is to say the executive and without reference to 
Parliament, which has the exclusive responsibility for the negotiation, 
conclusion, and termination of treaties. In other words, treaty making 
forms part of what we call the royal prerogative. If the implementation 
of a treaty requires a change in domestic law or the conferment of new 
powers upon the executive, the government of the day will of course 
have to secure the passage through Parliament of the necessary enabling 
legislation. This will normally be done during the period between 
signature and ratification of the treaty, since otherwise there would 
be the risk that the United Kingdom's domestic law would not permit 
full effect to be given to the treaty as and when it entered into 
force.'' Sir Ian Sinclair (Legal Adviser, Foreign and Commonwealth 
Office, United Kingdom, 1976-1984), Vienna Convention on the Law of 
Treaties: The Consequences of Participation and Nonparticipation, 
Proceedings of the American Society of International Law at its 78th 
Annual Meeting 272 (1984). For a comparison of practices of various 
nations, see Interparliamentary Union, Parliaments and the Treatymaking 
Power, Const. & Parl. Info., 1st Series, no. 145, 1st quarter (1986).
---------------------------------------------------------------------------
     These provisions have been of interest to the U.S. Senate 
primarily because of the question whether they could prevent 
the United States from being internationally bound by an 
instrument which the President signed as an executive 
agreement, but which arguably should have been sent for Senate 
advice and consent.\65\ In the words of one constitutional 
authority:
---------------------------------------------------------------------------
    \65\ See discussion under section, Senate Action on the Convention, 
earlier in this chapter, which includes the texts of Senate 
interpretations and understandings to the Vienna Convention proposed in 
1972 and 1973.
---------------------------------------------------------------------------
        A(n) * * * issue is whether under international law the 
        United States could ever claim it was not bound by an 
        agreement because it was made without Senate consent. 
        Whether a state can escape obligation on the ground 
        that those who incurred it in her behalf acted ultra 
        vires under the national constitution is not wholly 
        agreed. * * * Art. 46(1) of the Vienna Convention on 
        the Law of Treaties * * * provides that a state cannot 
        invoke failure to comply with its internal law as a 
        defense ``unless that violation was manifest and 
        concerned a rule of its internal law of fundamental 
        importance.'' Senate consent has been cited as an 
        example of a fundamental requirement. * * * But the 
        power of the President to make many agreements without 
        the Senate casts some doubt on the ``fundamental 
        importance'' of Senate consent; in any event, failure 
        to obtain such consent cannot be a ``manifest'' 
        violation of the Constitution since no one can say with 
        certainty when it is required. [Citations omitted] \66\
---------------------------------------------------------------------------
    \66\ Louis Henkin, Foreign Affairs and the United States 
Constitution, note 174 at 499 (2d ed. 1996).

     The potential ramifications of this problem were not 
addressed by Secretary of State William P. Rogers, when in his 
letter submitting the Vienna Convention to the President [for 
transmittal to the Senate], he referred to Article 46 and the 
effect of a limitation of domestic law upon a state's 
competence to conclude treaties. The Secretary noted generally 
that the U.S. delegation supported Article 46 on the basis 
that:
        * * * it deals solely with the conditions under which a 
        state may invoke internal law on the international 
        plane to invalidate its consent to be bound and that in 
        no way impinges on internal law regarding competence to 
        conclude treaties insofar as domestic consequences are 
        concerned.\67\
---------------------------------------------------------------------------
    \67\ S. Exec. Doc. L at 5.

     This issue was, however, addressed by the Restatement 
(Third) which commented that:
        Presumably, a manifest violation might involve either 
        procedural irregularities or a contravention of 
        substantive prohibitions or requirements of domestic 
        law. As to the United States, all states may be 
        presumed to know that the President of the United 
        States cannot make a treaty without the consent of the 
        Senate. * * * The President has authority, however, to 
        make many international agreements pursuant to treaty 
        or congressional authorization * * *, or on his own 
        authority * * *, and since the circumstances in which 
        Senate consent is essential are uncertain, improper use 
        of an executive agreement in lieu of a treaty would 
        ordinarily not be a ``manifest'' violation. * * * Some 
        agreements, such as the United Nations Charter or the 
        North Atlantic Treaty, are of sufficient formality, 
        dignity, and importance that, in the unlikely event 
        that the President attempted to make such agreement on 
        his own authority, his lack of authority might be 
        regarded as ``manifest.'' \68\
---------------------------------------------------------------------------
    \68\ Rest. 3d, Sec. 311, Comment c.

     A somewhat similar position on what constitutes a 
``manifest'' violation of a nation's domestic law governing 
competence to conclude treaties was taken by the International 
Law Commission (a body of 25 legal scholars elected by the U.N. 
General Assembly) in its Commentary on its Final Draft of the 
Vienna Convention. The commission noted that differing 
viewpoints exist on the issue of whether or not an agent who is 
competent under international law to commit a state--but 
perhaps not authorized to do so under domestic law--and who 
expresses state consent to a treaty by an established 
international procedure in fact binds the state to the treaty 
under international law. In response to this issue, the 
commission noted that decisions of international tribunals, 
together with state practice, appear to support a position 
holding that failure of an agent to comply with domestic 
requirements does not affect the validity of the treaty under 
international law.\69\
---------------------------------------------------------------------------
    \69\ Such failure, however, may limit that state's power to enforce 
a treaty and may also render the agent liable to legal consequences 
under domestic law. For supporting citations, see Travaux 
Preparatoires, pp. 336-338 (1978). See also United Nations, Reports of 
the International Law Commission on the Second Part of its Seventeenth 
Session, January 3-28, 1966, and on Its Eighteenth Session, May 4-July 
19, 1966, 61 American Journal of International Law 394-400 (1967).
---------------------------------------------------------------------------
     A different position was taken in 1975 by the Office of 
the Legislative Counsel of the Senate. The office suggested 
that if a state should reasonably have known of a 
constitutional defect in an agreement with the United States, 
that is, that certain agreements are ``beyond the power of the 
President to enter into without the advice and consent of the 
Senate,'' then such an agreement would be without force and 
effect under international law. Its memorandum noted that under 
international law, as evidenced in many sources including the 
Vienna Convention:
        (1) a State may be bound, under international law, by 
        an agreement made in violation of its constitutional 
        process;
        (2) a State is not bound if (A) such violation is 
        fundamental; and (B) the other party to such agreement 
        should reasonably have known of the constitutional 
        defect;
        (3) such State is bound, however, if its subsequent 
        conduct indicates acquiescence in the validity of the 
        agreement.\70\
---------------------------------------------------------------------------
    \70\ Memorandum of September 24, 1975, from Michael J. Glennon, 
Assistant Counsel, Office of the Legislative Counsel, U.S. Senate, 
regarding a memorandum of agreement between the United States and 
Israel, dated September 1, 1975. The agreements and assurances in 
question were made by the United States in connection with the Egypt-
Israel disengagement agreement of September 4, 1975. See Early Warning 
System in Sinai: Hearings before the Senate Committee on Foreign 
Relations, 94th Cong. 79 (1975). Excerpts from the Senate Legislative 
Counsel's memo are reproduced in U.S. Department of State, Digest of 
United States Practice in International Law, 1975, 320 (1976) 
(hereafter cited as Digest, 1975). See also section, ``Senate Action on 
the Convention,'' earlier in this chapter for views on the Vienna 
Convention expressed by Mr. Glennon in 1984.

     This memorandum asserts a Senate viewpoint that other 
nations should ``reasonably know'' of constitutional defects 
such as the lack of Senate advice and consent to certain 
agreements, and that in some instances the Senate might 
maintain the agreement is invalid under international law.\71\
---------------------------------------------------------------------------
    \71\ Note that whereas Art. 46 of the Vienna Convention describes a 
``manifest'' violation in terms of ``being objectively evident to any 
state,'' the memorandum above employs the standard when states ``should 
reasonably have known'' of a constitutional defect [emphasis added]. 
Nevertheless, it is the President who voids an executive agreement, and 
not the Senate.
---------------------------------------------------------------------------
     The issues discussed above resulted from the Vienna 
Convention's lack of clarification of the circumstances which 
permit a state to invalidate a treaty (under the rare and 
exceptional circumstances when a manifest violation of a 
state's internal law regarding competence to conclude treaties 
might occur).\72\ Thus Article 46 has been an issue in the 
consideration of the convention by the Senate Foreign Relations 
Committee, discussed above.
---------------------------------------------------------------------------
    \72\ See Section A above, The Vienna Convention on the Law of 
Treaties. However, because the internal laws of states vary in their 
requirements for invalidation of a treaty, it would be difficult for 
the Vienna Convention to provide more specificity in this area. 
Furthermore, the internal laws of a country may not even been clear on 
this issue. In the United States, for example, ``[t]he Supreme Court 
has not held any executive agreement to be ultra vires the President 
and * * * has upheld several agreements of particular character, but it 
has not laid down principles or given general guidance to define the 
President's power to act alone.'' See Louis Henkin, Foreign Affairs and 
the United States Constitution, supra note 66, note at 222.
---------------------------------------------------------------------------

          E. Non-Binding Agreements and Functional Equivalents

     A non-binding international agreement is one that does not 
meet the previously stated criteria for a binding international 
agreement.\73\ Non-binding agreements do not convey an 
intention of the parties to create legally committing 
relationships under international law. Often such documents 
convey merely a present intention to perform an act or a 
commitment of a purely personal, political, or moral 
nature.\74\ The Helsinki Agreement mentioned above, for 
example,\75\ avoids words of legal commitment and states that 
it is not eligible for registration as a treaty in force under 
Article 102 of the U.N. Charter.\76\
---------------------------------------------------------------------------
    \73\ See previous discussion in Sec. C, Criteria for a Binding 
International Agreement.
    \74\ Rest. 3d, Sec. 301, Comment e and Reporters' Note 2.
    \75\ 73 Dep't St. Bull. 323 (1975).
    \76\ See Digest, 1975, supra note 70 at 325-327. See also U.S. 
Department of State, 11 Foreign Affairs Manual, ch. 700 [Circular 175], 
Sec. 740.2-5, reproduced in Appendix 4 of this volume.
---------------------------------------------------------------------------
     Non-binding agreements may take many forms, including 
unilateral commitments and declarations of intent, joint 
communiques and joint statements (including final acts of 
conferences), and informal agreements. Even when agreements are 
legally non-binding, the parties affected may to some degree 
expect adherence.
     The Department of State described the difference between a 
legally binding obligation and a political obligation in 
describing certain declarations, intended to be politically 
rather than legally binding, exchanged in connection with the 
START Treaty:
        An undertaking or commitment that is understood to be 
        legally binding carries with it both the obligation of 
        each Party to comply with the undertaking and the right 
        of each Party to enforce the obligation under 
        international law. A ``political'' undertaking is not 
        governed by international law and there are no 
        applicable rules pertaining to compliance, 
        modification, or withdrawal. Until and unless a Party 
        extricates itself from its ``political'' undertaking, 
        which it may do without legal penalty, it has given a 
        promise to honor that commitment, and the other Party 
        has every reason to be concerned about compliance with 
        such undertakings. If a Party contravenes a political 
        commitment, it will be subject to an appropriate 
        political response.\77\
---------------------------------------------------------------------------
    \77\ Treaty with the Union of Soviet Socialist Republics on the 
Reduction and Limitation of Strategic Offensive Arms (START), Treaty 
Doc. 102-20, transmitted to the Senate November 25, 1991.
---------------------------------------------------------------------------

            unilateral commitments and declarations of intent

     Unilateral commitments and related instruments such as 
unilateral declarations of intent cannot constitute 
international agreements in the strict sense because an 
agreement, by definition, requires at least two parties.\78\ 
For example, a unilateral commitment or declaration in the form 
of a promise to send money to a country to help earthquake 
victims, but without reciprocal commitments on the part of the 
other country, would be a promise of a gift and not an 
international agreement.
---------------------------------------------------------------------------
    \78\ Department of State Memo of March 12, 1976, supra note 30, at 
266.
---------------------------------------------------------------------------
     Situations do exist, however, under which unilateral 
commitments or declarations of intent may become binding 
international agreements. Such instances involve parallel 
unilateral undertakings by two or more states that are 
unilateral in form but which in content constitute bilateral or 
multilateral agreements. Such reciprocal unilateral 
declarations occur regularly in international relations.\79\
---------------------------------------------------------------------------
    \79\ Rest. 3d, Sec. 301, Reporters' Note 3, which supports the 
premise that ``reciprocal'' unilateral declarations that accept the 
compulsory jurisdiction of the International Court of Justice under 
Article 26 of the Court's Statute have been held by that court to 
constitute an international agreement among the declaring states. See 
Anglo-Iranian Oil cases (U.K. v. Iran), 1952 I.C.J. 93 (July 22).
---------------------------------------------------------------------------
     It should be noted that in one important set of cases a 
unilateral commitment was held legally binding upon the party 
making it, even though it was not made in a multilateral 
context. Such a finding was reached by the International Court 
of Justice in the Nuclear Tests cases.\80\ In these cases, the 
International Courts ruled that a series of unilateral 
declarations by France concerning its intention to refrain from 
future atmospheric nuclear testing in the South Pacific was 
legally binding upon France. The sense of the Court's holding 
was that publicity and an intent to be bound are sufficient in 
such an instance to give rise to a legal obligation. In the 
words of the Court:
---------------------------------------------------------------------------
    \80\ Nuclear Tests case (Austl. v. Fr.), 1974 I.C.J. 253, 267-268 
(Dec. 20), and Nuclear Tests case (N.Z. v. Fr., 1974 I.C.J. 457 (Dec. 
20).
---------------------------------------------------------------------------
          It is well recognized that declarations made by way 
        of unilateral acts * * * may have the effect of 
        creating legal obligations. Declarations of this kind 
        may be, and very often are, very specific. When it is 
        the intention of the State making the declaration that 
        it should become bound * * * that intention confers on 
        the declaration the character of a legal undertaking * 
        * *. An undertaking of this kind, if given publicly, 
        and with an intent to be bound, even though not made 
        within the context of international negotiations, is 
        binding * * *. Just as the very rule of pacta sunt 
        servanda in the law of treaties is based on good faith, 
        so also is the binding character of an international 
        obligation assumed by unilateral declaration. Thus, 
        States may take cognizance of unilateral declarations 
        and place confidence in them, and are entitled to 
        require that the obligations thus created be 
        respected.\81\
---------------------------------------------------------------------------
    \81\ Ibid., para. para. 43 and 46 (Aust. v. Fr.), para. para. 46 
and 49 (N.Z. v. Fr.). See also S. Rubin, The International Legal 
Effects of Unilateral Declarations, 71 Am. J. Int'l. L. 1-30 (1977).

     The International Court's decision in this matter, 
although binding only on the parties in these particular 
cases,\82\ is problematic to legal analysts because it runs 
contrary to the legal principles that have traditionally 
governed such unilateral pronouncements or statements of 
intent.\83\ Moreover, the analysts argue, among other things, 
that governments are unlikely to accept the view that their 
policy pronouncements are binding. If such pronouncements are 
subject to interpretation as legal commitments by the 
International Court, some observers point out that few states 
would submit to its jurisdiction.\84\
---------------------------------------------------------------------------
    \82\ Art. 59 of the Statute of the International Court of Justice.
    \83\ S. Rubin, The International Legal Effects of Unilateral 
Declarations, supra note 81, at 28-30.
    \84\ Ibid.
---------------------------------------------------------------------------

                 joint communiques and joint statements

     Joint statements of intent are not binding agreements 
unless they meet the requirements of legally binding 
agreements, that is, that the parties intend to be legally 
bound. As in the case with all agreements, the substance and 
not the title is dispositive. Thus, whether or not a joint 
statement is titled a ``joint statement'' or ``joint 
communique'' or ``declaration'' has no effect on whatever legal 
standing it may hold independent of its title.\85\
---------------------------------------------------------------------------
    \85\ The way an instrument is dealt with after its conclusion may 
be an indication of whether it is intended to have legal effect. For 
example, it may be published in a national treaty collection, or it may 
be registered under Art. 102 of the U.N. Charter, or it may be 
described as a treaty during submission to a national parliament.
---------------------------------------------------------------------------
     An important non-binding agreement was the communique and 
joint statement issued by the United States and the U.S.S.R. 
reaffirming their intention not to take action inconsistent 
with the interim strategic arms limitation agreement that 
expired in 1977. The Department of State and the counsel to the 
Senate Foreign Relations Committee both found that this 
communique and statement did not constitute an international 
agreement. In the words of then-committee counsel, Michael J. 
Glennon: ``It [the statement] is nonbinding, it is not governed 
by international law, no exchange of promises has been 
bargained, other such actions have not been so construed, and 
the parties do not intend for an agreement to exist--indeed, 
there are no `parties' as such.'' \86\ Another example is the 
Bonn Declaration of July 17, 1978. This declaration was issued 
after an economic summit which was held at Bonn, West Germany, 
July 16 and 17, 1978, and was subscribed to by the leaders of 
seven nations including the United States.\87\ The declaration, 
which summarized the problems discussed in the summit meeting 
and stated the commitments agreed to be necessary for their 
resolution, prompted a request from the Chairman of the Senate 
Foreign Relations Committee to the Department of State 
regarding its legal significance. The reply from the State 
Department read in part:
---------------------------------------------------------------------------
    \86\ See U.S. Department of State, Digest of United States Practice 
in International Law, 1977, 429 (1978) (hereafter cited as Digest, 
1977).
    \87\ The nations were Canada, France, West Germany, Italy, Japan, 
the United Kingdom, and the United States. See Digest, 1977, supra note 
86, at 799-800.
---------------------------------------------------------------------------
        While the Declaration issued in Bonn is an important 
        political commitment, it is not an international 
        agreement within the meaning of United States law or 
        international law since the parties did not evidence an 
        intent to depart from the established international 
        practice of concluding non-binding communiques at the 
        conclusion of a summit meeting. Accordingly, while we 
        expect that the Bonn summit participants will comply 
        with the accord, it is not a legally binding 
        commitment.\88\
---------------------------------------------------------------------------
    \88\ Ibid., at 799.
---------------------------------------------------------------------------

                           informal agreements

     In contrast to the calculated ambiguity of many non-
binding declarations and agreements, governments may enter into 
precise and definite understandings that are clearly intended 
to affect their relations with each other, but with a clear 
understanding that agreements are not legally binding. Such 
informal agreements were formerly called ``gentlemen's 
agreements.'' \89\
---------------------------------------------------------------------------
    \89\ Rest. 3d, Sec. 301, Comment e.
---------------------------------------------------------------------------
     Informal agreements may be made by heads of state or 
government, by foreign ministers, or by other authorized 
officials. In these cases, the parties generally assume a 
commitment to perform or refrain from certain acts. Although 
the commitments are regarded as non-legal, there is 
nevertheless an expectation of performance by the parties.\90\
---------------------------------------------------------------------------
    \90\ See Oscar Schachter, The Twilight Existence of Nonbinding 
International Agreements, 71 Am. J. Int'l. L., 296, 299 (1977).
---------------------------------------------------------------------------
     An example is a 1908 agreement between the U.S. and 
Japanese foreign ministers whereby the Japanese Government 
agreed to take administrative measures to limit the emigration 
of Japanese laborers to the United States. This was done with 
the understanding that the United States, in return, would not 
adopt discriminatory exclusionary legislation against Japanese 
citizens. The agreement terminated when the Congress enacted 
the 1924 immigration law that discriminated against 
Japanese.\91\ More recent examples would include voluntary 
restraints agreed to by governments in the trade field.
---------------------------------------------------------------------------
    \91\ Ibid., citing 2 Foreign Relations of the United States, 339-
393 (1924).
---------------------------------------------------------------------------
     Even though states do not accept legal responsibility for 
non-binding commitments such as informal agreements, a state 
may choose to regard a non-binding undertaking as a controlling 
one. It may do so even though the affected parties generally 
have no legal remedy or sanctions for breaches of such 
commitments. The failure to abide by an informal agreement may 
have political consequences, however, possibly including 
countermeasures.

                    status of non-binding agreements

     Although legally not enforceable, non-binding agreements 
and unilateral commitments are useful to states in meeting 
certain needs. The need for flexibility--for keeping options 
open--is common to most governments and help to make non-
binding agreements attractive to them. Non-binding agreements 
provide a recognized procedural means for a state to exercise 
this flexibility.
     Often, non-binding agreements or commitments are used by 
states to signal broad policy guidelines which may be subject 
to change. Or, they may amount to nothing more than a 
propaganda ploy enabling a state to declare support for a 
policy it has no intention of following.
     Another reason for a state entering into non-binding 
agreements may be a desire to avoid legal remedies in the event 
of non-compliance, even though it intends to comply. Non-
binding agreements are well suited to such a role because that 
may relate to a very specific matter and may involve clear 
promises of intent and goodwill with expectations of reliance 
on them by all involved parties. And, if for some reason it is 
not possible to honor such an agreement, the aggrieved party 
may well have to pursue political rather than legal remedies.
     Non-binding agreements also permit a head of state or his 
agent to make commitments with the intention of honoring them, 
but without the need of going through what may be perceived as 
a cumbersome constitutional approval or reporting process 
reserved for binding agreements.\92\ Government officials may 
go on the record as expressing their intent to honor non-
binding commitments. For example, Secretary of State Kissinger, 
while testifying before the Senate Foreign Relations Committee 
regarding U.S. undertakings in connection with the Sinai 
Disengagement Agreements of 1975, noted that some of the 
undertakings were ``not binding commitments of the United 
States * * * [but that] does not mean, of course, that the 
United States is morally or politically free to act as if they 
did not exist. On the contrary, they are important statements 
of diplomatic policy and engage the good faith of the United 
States as long as the circumstances that gave rise to them 
continue.'' \93\ Supplemental statements of this type, however, 
do not affect the non-binding character of the commitment to 
which they relate.
---------------------------------------------------------------------------
    \92\ Rest. 3d, Sec. 301, Reporters' note 2.
    \93\ See 73 Dep't St. Bull. 613 (1975).
---------------------------------------------------------------------------
     As nations use non-binding agreements for different 
reasons, it is important to examine the motive for making a 
particular agreement non-binding, the context within which it 
is made, the wording and intent of the commitment as expressed 
by the language used, and the reputation and history of the 
state or representative for honoring such statements. Only by 
evaluating such criteria can a government arrive at realistic 
expectations as to whether or not the parties will comply with 
such commitments.
     In conclusion, international agreements having the status 
of treaties clearly show an intent by the parties to be bound 
under international law. They describe specific legal 
obligations which the parties assume and deal generally with 
matters of consequence. Treaties are governed internationally 
by international law. The Vienna Convention on the Law of 
Treaties, which the United States has signed but not ratified, 
is the most widely recognized international law source on 
current treaty law practice.
     Non-binding international understandings do not show an 
intent to create legal relationships. Frequently, such 
understandings convey only an intent to perform an act or a 
commitment of a purely personal, political, or moral nature. 
They may be important, however, as they are often used and 
often evoke expectations of compliance from affected states.


             IV. INTERNATIONAL AGREEMENTS AND U.S. LAW \1\
---------------------------------------------------------------------------

    \1\ Prepared by Jeanne J. Grimmett, Legislative Attorney.
---------------------------------------------------------------------------
                              ----------                              

    The purpose of this chapter is to identify the sources of 
constitutional authority underlying the conclusion of 
international agreements and the status of such agreements in 
the domestic law of the United States. To facilitate an 
understanding of the constitutional principles that are 
relevant to this area of the law, the succeeding discussion 
treats separately international agreements that are concluded 
in the form of ``treaties'' and those that are made in non-
treaty form by ``executive agreements.'' The distinction 
between these two modes of agreement-making is, of course, 
``purely a constitutional one and has no international 
significance.'' \2\ Even for purposes of domestic law, 
differentiation between treaties and executive agreements, at 
least on the basis of the nature or importance of the subject 
matter encompassed by these instruments, seems problematic in 
view of the actual practice of the nation under the 
Constitution. On the other hand, these two modes may be 
distinguished procedurally in that treaties, unlike executive 
agreements, are concluded exclusively pursuant to the joint 
action of the President and two-thirds of the Senate. Moreover, 
the domestic legal effect of treaties and executive agreements 
as law of the land may be identical in all circumstances.
---------------------------------------------------------------------------
    \2\ Research in International Law of the Harvard Law School-Law of 
Treaties: Draft Convention with Comment. American Journal of 
International Law, v. 29, 1935, p. 697. See also Art. 2(1)(a) of the 
1970 Vienna Convention on the Law of Treaties which defines ``treaty'' 
as ``an international agreement concluded between States in written 
form and governed by international law, whether embodied in a single 
instrument or in two or more related instruments and whatever its 
particular designation'' (emphasis supplied). S. Ex. L., 92d Cong., 1st 
Sess. 1971. The Vienna Convention is also reprinted in Appendix 5 of 
this volume.
---------------------------------------------------------------------------

                              A. Treaties

                        scope of the treaty power

     In providing that the President ``shall have Power, by and 
with the Advice and Consent of the Senate, to make Treaties, 
provided two-thirds of the Senators present concur,'' the 
treaty clause of the Constitution (Article II, Section 2, 
Clause 2) furnishes little textual guidance concerning the 
proper extent of the power so granted. Perhaps the most 
familiar judicial statement regarding the scope of this clause 
is that opined by the Supreme Court in Geofroy v. Riggs:
          * * * The treaty power, as expressed in the 
        Constitution, is in terms unlimited except by those 
        restraints which are found in that instrument against 
        the action of the government or of its departments, and 
        those arising from the nature of the government itself 
        and of the States. It would not be contended that it 
        extends so far as to authorize what the Constitution 
        forbids, or a change in the character of the government 
        or in that of one of the States, or a cession of any 
        portion of the territory of the latter, without its 
        consent * * * But with these exceptions, it is not 
        perceived that there is any limit to the questions 
        which can be adjusted touching any matter which is 
        properly the subject of negotiation with a foreign 
        country.\3\
---------------------------------------------------------------------------
    \3\ 133 U.S. 258, 267 (1890). For a discussion of the routinely 
used Senate treaty condition regarding constitutional supremacy, see 
``Condition Regarding Supremacy of the Constitution'' in Chapter V, 
Section C, infra.

    It seems clear from the Court's pronouncement in Geofroy v. 
Riggs that the treaty power is indeed a broad one, extending to 
``any matter which is properly the subject of negotiation with 
a foreign country.'' However, it is equally apparent that 
treaties, like Federal statutes, are subject to the overriding 
requirements of the Constitution. Although the Supreme Court 
has apparently never expressly held a treaty to be 
unconstitutional, the validity of the general principle has 
been repeated often and most unequivocally by the court in Reid 
v. Covert where Justice Black declared that ``[n]o agreement 
with a foreign nation can confer power on the Congress, or on 
any other branch of Government, which is free from the 
restraints of the Constitution.'' \4\
---------------------------------------------------------------------------
    \4\ 354 U.S. 1, 16 (1957). See also Doe v. Braden, 16 How. (57 
U.S.) 635, 656 (1853); The Cherokee Tobacco, 11 Wall. (78 U.S.) 616, 
620-621 (1871); Geofroy v. Riggs, 133 U.S. at 267; and United States v. 
Wong Kim Ark, 169 U.S. 649, 700 (1898).
---------------------------------------------------------------------------
    While there is little difficulty in light of the case law 
in establishing the theoretical supremacy of the Constitution 
over treaties,\5\ the identification of specific constitutional 
limitations that may affect the treaty power is attended by 
some complexity. Various limitations have been suggested over 
the years and are reviewed in the following discussion.
---------------------------------------------------------------------------
    \5\ With the exception of Justice Holmes' dictum in Missouri v. 
Holland, 252 U.S. 416 (1920), there appears to have been little legal 
basis for questioning the validity of the general principle that 
treaties are subordinate to the Constitution. In Missouri v. Holland, 
Justice Holmes stated that-- * * * Acts of Congress are the supreme law 
of the land only when made in pursuance of the Constitution, while 
treaties are declared to be so when made under the authority of the 
United States [Art. VI, cl. 2]. It is open to question whether the 
authority of the United States means more than the formal acts 
prescribed to make the convention. 252 U.S. at 433.
    Any intimations from Justice Holmes' language that treaties might 
not be subject to constitutional requirements were, however, 
subsequently laid to rest in Reid v. Covert, 354 at 16-18, where 
Justice Black, in expressly refusing to read Missouri v. Holland as 
support for such a proposition, indicated that ``[n]o agreement with a 
foreign national can confer power on the Congress, or on any other 
branch of Government, which is free from the restraints of the 
Constitution.''
---------------------------------------------------------------------------
    It was asserted early by Jefferson in his Manual of 
Parliamentary Practice that the treaty power does not extend to 
``the rights reserved to the States; for surely the President 
and Senate can not do by treaty what the whole Government 
interdicted from doing in any way.'' \6\ Notwithstanding 
Jefferson's view, it seems well-settled since Missouri v. 
Holland \7\ that the powers reserved to the States under the 
10th amendment constitute no bar to the exercise of the treaty 
power. In Missouri v. Holland the Supreme Court sustained a 
treaty and implementing legislation concerning the protection 
of migratory birds, a subject that previously had been held 
within the reserved powers of the States and beyond the 
legislative competence of Congress. According to Justice 
Holmes:
---------------------------------------------------------------------------
    \6\ Jefferson's Manual of Parliamentary Practice, sec. LII, 
reprinted in H. Doc. 105-358, 105th Cong., 2d Sess. 1999, p. 301 
(hereafter cited as Jefferson's Manual).
    \7\ 252 U.S. 416 (1920).
---------------------------------------------------------------------------
          The treaty in question does not contravene any 
        prohibitory words to be found in the Constitution. The 
        only question is whether it is forbidden by some 
        invisible radiation from the general terms of the Tenth 
        Amendment.

                                 * * *

        Here a national interest of very nearly the first 
        magnitude is involved. It can be protected only by 
        national action in concert with that of another power. 
        The subject matter is only transitorily within the 
        State and has no permanent habitat therein. But for the 
        treaty and the statute there soon might be no birds for 
        any powers to deal with. We see nothing in the 
        Constitution that compels the Government to sit by 
        while a food supply is cut off and the protectors of 
        our forests and our crops are destroyed.\8\
---------------------------------------------------------------------------
    \8\ Ibid. at 433-434 and 435.

    Although the unspecified reserved powers of the States 
under the 10th amendment seem inoperative as a limitation upon 
the treaty power, there may be rights conferred upon the States 
by other provisions of the Constitution that, at least in 
theory, could restrict treatymaking. It has been suggested that 
a treaty could not undermine the guaranty of the States to a 
``Republican Form of Government'' (Article IV, Section 4), or 
infringe the authority of a State concerning its militia 
(Article 1, Section 8, Clause 16, and Amendment 2) as in a 
treaty mandating abolition of State militias pursuant to a 
scheme of general disarmament.\9\ While the Court in Geofroy v. 
Riggs further indicated that a treaty may not cede a portion of 
the territory of a State without the latter's consent, such a 
restriction upon the treaty power is not specifically mentioned 
in the Constitution and the validity of this alleged limitation 
seems questionable.\10\
---------------------------------------------------------------------------
    \9\ American Law Institute, Restatement (Third) of the Foreign 
Relations Law of the United States Sec. 302, Reporters' Note 3 (1987) 
(hereafter cited as Rest. 3d). See also Henkin, Louis. Foreign Affairs 
and the United States Constitution. 2d ed. 1996, pp. 193-194 (hereafter 
cited as Henkin 1996). Recent Supreme Court decisions setting limits on 
congressional enactments vis a vis the states on the ground that the 
enactments fell outside the scope of Congress' Commerce Power or were 
subject to 10th amendment limitations (New York v. United States, 504 
U.S. 144 (1992), Lopez v. United States, 514 U.S. 549 (1995), Printz v. 
United States, 521 U.S. 898 (1997), Morrison v. United States, 529 U.S. 
598 (2000); note also Solid Waste Agency of Northern Cook County v. 
U.S. Army Corps of Engineers, No. 99-1178 (U.S. Jan. 9, 2001) have 
raised questions as to whether the treaty power may be similarly 
vulnerable to limitations grounded in federalism. Agreements that have 
been suggested as possibly raising such concerns are ``a disarmament 
agreement with inspection provisions that permits intrusion upon the 
statehouse, or a treaty that commands state legislatures to adopt laws 
or that coopts state officials.'' Henkin 1996, p. 194. For discussion 
of these issues, see, for example, Bradley, Curtis A. The Treaty Power 
and American Federalism. Michigan Law Review, v. 97, 1998, p. 390; 
Healy, Thomas, Note, Is Missouri v. Holland Still Good Law? Federalism 
and the Treaty Power. Columbia Law Review, v. 98, p. 1726 (1998); 
Vazquez, Carlos Manuel. Breard, Printz, and the Treaty Power. 
University of Colorado Law Review, v. 70, 1999, p. 1317; Golove, David 
M. Treaty-Making and the Nation: The Historical Foundations of the 
Nationalist Conception of the Treaty Powers. Michigan Law Review, v. 
98, 2000, p. 1075.
    \10\ See Henkin 1996, p. 193 and pp. 465-466, n. 72.
---------------------------------------------------------------------------
    A second major limitation upon treatymaking urged by 
Jefferson pertains to ``those subjects of legislation in which 
[the Constitution] gave a participation to the House [of 
Representatives].'' \11\ Concerning this limitation, Jefferson 
added that ``[t]his * * * exception is denied by some on the 
ground that it would leave very little matter for the treaty 
power to work on. The less the better, say others.'' \12\ 
Although there is judicial dicta that perhaps indirectly 
suggest such a restriction,\13\ Jefferson's assertion seems to 
have been refuted by the actual practice under the 
Constitution. Thus, instances are readily found of treaties 
containing subject matter that lies within Congress' delegated 
powers, as in treaties pertaining to foreign commerce, the 
payment of money, war, the organization of judicial tribunals, 
and rules of maritime blockage and capture.\14\ Moreover, it 
recently has been held that Congress' power to dispose of 
property belonging to the United States (Article IV, Section 3, 
Clause 2) presents no constitutional bar to disposition by 
treaty of American property interests in the Panama Canal.\15\
---------------------------------------------------------------------------
    \11\ Jefferson's Manual, p. 301.
    \12\ Ibid.
    \13\ See, for example, Geofroy v. Riggs, 133 U.S. at 267, and 
Holden v. Joy, 17 Wall. (84 U.S.) 211, 243 (1872), noting general 
limitations upon the treaty power arising from ``the nature of the 
government.''
    \14\ See Wright, Quincy. Treaties and the Constitutional Separation 
of Powers in the United States. American Journal of International Law, 
v. 12, 1918, pp. 65-85 (hereafter cited as Wright, Treaties and 
Separation of Powers).
    \15\ Edwards v. Carter, 580 F. 2d 1055 (D.C. Cir. 1978), cert. 
denied, 436 U.S. 907 (1978).
---------------------------------------------------------------------------
    While there appears to be general agreement that subject 
matter falling within the scope of Congress' delegated powers 
may be dealt with by treaty,\16\ a separate question, which is 
considered infra, concerns the extent to which a treaty 
touching such subjects can become effective as domestic law 
without the aid of an implementing statute. The distinction 
between these two issues is noted in the following commentary 
which, with reference to the argument that the treaty power is 
limited by Congress' delegated authority, states that:
---------------------------------------------------------------------------
    \16\ See Wright, Treaties and Separation of Powers, pp. 65-85; 
Henkin 1996, pp. 194-195; Rest. 3d, Sec. 303, Comment c and Reporters' 
Note 2.
---------------------------------------------------------------------------
          [I]t is not clear what the limitation means. If it is 
        meant that no international agreement could be 
        constitutionally entered into by the United States 
        within the sphere of such powers the practice from the 
        beginning has been to the contrary; if it is meant that 
        treaty provisions dealing with matters delegated to 
        Congress must, in order to become the law of the land, 
        receive the assent of Congress through implementing 
        legislation, it states not a limitation on the power of 
        making treaties as international conventions but rather 
        a necessary procedure before certain conventions are 
        cognizable by the courts in the enforcement of rights 
        under them.\17\
---------------------------------------------------------------------------
    \17\ The Constitution of the United States of America--Analysis and 
Interpretation, S. Doc. 6, 103d Cong., 1st Sess. 1996, pp. 485-486 
(hereafter cited as Constitution--Analysis and Interpretation).

    A third limitation upon the treaty power has been raised in 
connection with treaties authorizing participation by the 
United States in proceedings before certain types of 
international judicial tribunals. The basic constitutional 
issue concerning such participation seems whether the 
authorizing treaty improperly delegates the ``Judicial Power of 
the United States'' which the Constitution otherwise vests in 
``one Supreme Court, and in such inferior Courts as the 
Congress may from time to time ordain and establish'' (Article 
III, Section 1). It has been argued that where an international 
judicial tribunal adjudicates claims between nation-states, the 
type of judicial power being exercised is international, and, 
hence, there is no improper usurpation by treaty of the 
domestic ``Judicial Power of the United States'' for 
constitutional purposes.\18\ The International Court of Justice 
would be an example of this type of international tribunal.
---------------------------------------------------------------------------
    \18\ Henkin 1996, p. 267.
---------------------------------------------------------------------------
    On the other hand, a more serious constitutional objection 
might be raised against a treaty authorizing an international 
tribunal to exercise appellate jurisdiction over cases from 
U.S. courts. An arrangement of this nature was envisioned in 
The Hague Prize Court Convention of 1907 \19\ which established 
an international court with appellate jurisdiction from 
national courts in prize cases. Concerned that this procedure 
would be inconsistent with the final appellate jurisdiction of 
the Supreme Court, American negotiators proposed a 
supplementary protocol \20\ authorizing de novo actions against 
the United States before the International Prize Court in lieu 
of appeals from domestic courts.\21\
---------------------------------------------------------------------------
    \19\ International Prize Court Convention, October 18, 1907, 
reprinted in Treaties, Conventions, International Acts, Protocols, and 
Agreements Between the United States of America and Other Powers, S. 
Doc. 1063, 62d Cong., 3d Sess. 1913, p. 248 (G. Charles comp.) 
(hereafter cited as Charles, Treaties).
    \20\ Additional Protocol to the Convention Relative to the 
Establishment of an International Court of Prize, Sept. 19, 1910, 
reprinted in Charles, Treaties, p. 262.
    \21\ See Butte, The ``Protocol Additional'' to the International 
Prize Court Convention. American Journal of International Law, v. 6, 
1912, p. 799; Scott, The International Court of Prize. American Journal 
of International Law, v. 5, 1911, p. 302; and Henkin, Louis, Foreign 
Affairs and the Constitution. 1972, p. 197 (hereafter cited as Henkin 
1972), and Henkin 1996, pp. 518-519. Notwithstanding Senate consent, 
the United States did not ratify the convention.
---------------------------------------------------------------------------
    A fourth limitation which has been alleged to circumscribe 
the treaty power is that treaties must relate to ``proper 
subjects of negotiation'' with a foreign nation. Such a 
limitation is suggested by judicial dicta \22\ and may also be 
present in Jefferson's statement that ``[b]y the general power 
to make treaties, the Constitution must have intended to 
comprehend only those subjects which are usually regulated by 
treaty * * *.'' \23\ This restriction is also associated with 
remarks made by Charles Evans Hughes before the annual meeting 
of the American Society of International Law in 1929 where he 
asserted that ``[t]he power [of treaty-making], is to deal with 
foreign nations with regard to matters of international 
concern. It is not a power intended to be exercised, it may be 
assumed, with respect to matters that have no relation to 
international concerns.'' \24\ While the ``international 
concern'' limitation upon treatymaking had been generally 
accepted,\25\ the American Law Institute rejected this view in 
1987 in its Restatement (Third) of the Foreign Relations Law of 
the United States.\26\ There has been no clear test for 
determining the circumstances in which the doctrine should 
apply and it has been observed, moreover, that ``[m]atters of 
international concern are not confined to matters exclusively 
concerned with foreign relations. Usually, matters of 
international concern have both international and domestic 
effects, and the existence of the latter does not remove a 
matter from international concern.'' \27\ The limitation 
appears to have rarely been an issue in reported decisions. In 
Power Authority of New York v. Federal Power Commission,\28\ a 
Federal Circuit Court of Appeals, in order to avoid declaring 
an entire treaty void for want of international concern, 
invoked the restriction against a ``reservation'' which the 
Senate had attached to the treaty but which the court viewed as 
merely an expression of the ``Senate's desires'' and of 
``domestic policy.'' \29\
---------------------------------------------------------------------------
    \22\ In Holden v. Joy, 17 Wall. (84 U.S.) at 243, the Court stated 
that the treaty power ``should extend to all those objects which in the 
intercourse of nations had usually been regarded as the proper subjects 
of negotiation and treaty.'' See also Geofroy v. Riggs, 133 U.S. at 
267, quoted in the text accompanying note 3 supra, and Akasura v. 
Seattle, 265 U.S. 332, 341 (treaty power ``extend[s] to all proper 
subjects of negotiation between out government and other nations'').
    \23\ Jefferson's Manual, p. 301.
    \24\ American Society of International Law Proceedings, v. 23, 
1929, p. 194.
    \25\ Henkin 1972, p. 152.
    \26\ Rest. 3d, Sec. 302, Comment c and Reporters' Note 2. See also 
Henkin 1996, pp. 197-198.
    \27\ American Law Institute, Restatement 2d of the Foreign 
Relations Law of the United States (1965), Sec. 117, Comment b. In this 
regard, the current Foreign Relations Restatement observes--There is no 
principle either in international law or in U.S. constitutional law 
that some subjects are intrinsically ``domestic'' and hence 
impermissible subjects for an international agreement. As to 
international law, it has been authoritatively stated that even a 
subject that is strictly of domestic concern ``ceases to be one solely 
within the domestic jurisdiction of the State [and] enters the domain 
governed by international law,'' if states conclude an international 
agreement about it. Nationality Decrees in Tunis and Morocco (Great 
Britain v. France), P.C.I.J. ser. B, No. 4, p. 26 (1923). Under U.S. 
laws, the Supreme Court has upheld agreements on matters that, apart 
from the agreement, were strictly domestic and indeed assumed to be 
within state rather than Federal authority. For example, De Geofroy v. 
Riggs [133 U.S. 258] * * * (rights of inheritance in land); Missouri v. 
Holland [252 U.S. 416] * * * (protection of migratory birds). Early 
arguments that the United States may not adhere to international human 
rights agreements because they deal with matters of strictly domestic 
concern were later abandoned. * * *'' Rest. 3d, Sec. 302, Reporters' 
Note 2.
    \28\ 247 F. 2d 538 (D.C. Cir. 1957), jud. vac. and rem. for 
mootness sub. nom. American Public Power Assn. v. Power Authority of 
New York, 355 U.S. 64 (1957).
    \29\ The reservation at issue, which had been attached by the 
Senate to the Treaty Concerning Uses of the Waters of the Niagara 
River, Feb. 27, 1950, United States-Canada, 1 U.S.T. 694, specified 
that the United States reserved the right to develop its share of the 
Niagara River by an act of Congress and that redevelopment projects in 
such waters were prohibited until authorized by congressional 
enactment. The decision has been criticized for its failure to 
recognize the existence of genuine international concern regarding the 
Senate's reservation. See Henkin, Louis, The Treaty Makers and the Law 
Makers: The Niagara Reservation. Columbia Law Review, v. 56, 1956, p. 
1151. See also text at notes 36-38 infra. In United States v. Lue, 134 
F. 3d 79 (2d Cir. 1998), the Federal Circuit Court of Appeals rejected 
appellant's argument that the International Convention Against the 
Taking of Hostages was beyond the power of the Executive to sign under 
Article II because it regulated matters of domestic concern not 
involving relations with other nations. The court took note of the 
breadth of the treaty power, though admitting a possible constitutional 
``outer limit.'' It concluded that the convention did not in any event 
``transgress'' any such limit, as it addressed two issues of central 
international concern: the treatment of foreign nationals while they 
are on local soil and hostage taking as a vehicle for terrorism. 134 F. 
3d at 83.
---------------------------------------------------------------------------
    A fifth and widely recognized limitation upon the treaty 
power is that provided by the Bill of Rights.\30\ This 
restriction upon treatymaking seems implicit from the context 
of Justice Black's reminder in Reid v. Covert that ``[n]o 
agreement with a foreign national can confer power on the 
Congress, or on any other branch of Government, which is free 
from the restraints of the Constitution,'' and that ``[t]he 
prohibitions of the Constitution were designed to apply to all 
branches of the National government, and they cannot be 
nullified by the Executive or by the Executive and the Senate 
combined.'' \31\ The necessity for Justice Black's statement 
originated in the contention, which the court rejected, that 
Article 2(11) of the Uniform Code of Military Justice,\32\ 
which effectively denied trial by jury and other Bill of Rights 
protections to civilian dependents accompanying American armed 
forces abroad, could nevertheless be sustained as legislation 
necessary and proper to implement U.S. jurisdictional rights 
under specified bilateral agreements with foreign host 
governments.
---------------------------------------------------------------------------
    \30\ Rest. 3d Sec. 302(2), Comment b, and Reporters' Note 1; 
Constitution--Analysis and Interpretation, p. 486; Henkin 1996, pp. 185 
and 283 et seq.
    \31\ 354 U.S. 1, 16, 17 (1957).
    \32\ 64 Stat. 109 (1950).
---------------------------------------------------------------------------
    Whatever specific constitutional limitations may be deemed 
applicable to the treaty power in a given case, the courts, in 
lieu of express declarations of unconstitutionality, evidence a 
proclivity merely to refuse full effectuation of specific 
treaty provisions that might offend constitutional 
requirements. Thus, in City of New Orleans v. United 
States,\33\ a treaty provision conferring ``full sovereignty'' 
upon the United States over ceded public lands was held 
ineffective by the Supreme Court to prohibit the sale of the 
land by city authorities where recognition of Federal title 
under the treaty would have deprived just compensation to 
vested private property interests in derogation of the fifth 
amendment. An additional example is afforded by Rocca v. 
Thompson,\34\ where the Court, after noting ``there is, of 
course no Federal law of probate or the administration of 
estates,'' refused to preempt the local administration of an 
alien decedent's estate notwithstanding a treaty provision 
which permitted resident foreign consuls to ``intervene'' in 
estate liquidation proceedings of foreign nationals dying 
intestate in the United States. In a similar vein is United 
States ex rel. Martinez Angusto v. Mason,\35\ where a Federal 
Circuit Court of Appeals, in the absence of an authorizing 
statute or Presidential directive, refused to deem Navy and 
Immigration and Naturalization Service agents as ``competent 
national or local authorities'' under an applicable treaty for 
purposes of sanctioning the warrantless arrest and subsequent 
imprisonment of a deserting Spanish seaman. In Colello v. U.S. 
Securities and Exchange Commission, however, a case challenging 
a freeze of plaintiffs' assets in Switzerland, a Federal 
District Court held that the failure of the U.S.-Switzerland 
Treaty on Mutual Assistance in Criminal Matters to require U.S. 
officials to notify U.S. citizens of a governmental request for 
assistance from Switzerland and to provide a prompt post-
deprivation hearing violated their fifth amendment right to due 
process and to this extent the treaty was unconstitutional.\36\ 
It further held that the treaty's ``reasonable suspicion'' 
standard for freezing U.S. citizens' assets in Switzerland 
violated the fourth amendment, stating that ``[t]he executive 
cannot eliminate plaintiffs' fourth amendment right to be free 
of unreasonable searches by treaty.'' \37\
---------------------------------------------------------------------------
    \33\ 10 Pet. (35 U.S.) 662 (1836). For commentary concerning this 
case, see Cowles, Willard. Treaties and Constitutional Law. 1975 
reprint ed., p. 112.
    \34\ 223 U.S. 317 (1912).
    \35\ 344 F. 2d 673 (5th Cir. 1965).
    \36\ 908 F. Supp. 738, 752 (C.D. Cal. 1995).
    \37\ Ibid. at 755. The court granted the plaintiffs summary 
adjudication on both constitutional issues.
    Questions regarding fourth and fifth amendment protections for U.S. 
firms arose during Senate consideration of the Convention on the 
Prohibition of the Development, Production, Stockpiling and Use of 
Chemical Weapons. Done at Paris, January 13, 1993, entered into force 
April 29, 1997, International Legal Materials, v. 32, 1993, p. 800. The 
convention was approved by the Senate April 24, 1997. Congressional 
Record, April 24, 1997, p. S3651 (daily ed.). Fourth amendment 
protections against unreasonable search and seizure were implicated by 
treaty obligations regarding routine and challenge inspections of 
chemical facilities in party countries. Fifth amendment protections 
against governmental takings were implicated by the inspections 
themselves, since they could possibly result in property loss, 
particularly that of confidential business information. See U.S. 
Congress. Senate. Committee on the Judiciary. Constitutional 
Implications of the Chemical Weapons Convention. S. Hrg. 104-859, Sept. 
10, 1996; U.S. Congress. Senate. Committee on Foreign Relations. 
Chemical Weapons Convention. S. Hrg. 105-183, April 8-17, 1997.
    The Senate's advice and consent was made subject to numerous 
conditions, including (1) a direction to the President to withhold a 
portion of the U.S. contribution to the Organization of the Prohibition 
of Chemical Weapons created under the convention in the event certain 
disclosures of U.S. business information occurred or there were certain 
breaches of confidentiality, and (2) a requirement that the President, 
before depositing the U.S. instruments of ratification, certify to the 
Congress that in the event a firm withholds its consent to a search, 
the United States will first obtain a criminal search warrant supported 
by probable cause for challenge inspections and administrative warrant 
from a U.S. magistrate judge for routine inspections. Congressional 
Record, April 27, 1997, pp. S3655, S3657. Implementing legislation set 
forth further domestic legal requirements involving convention 
activities by, among other things, providing for civil actions against 
the United States for claims for taking of property and setting forth 
warrant requirements for routine and challenge inspections. Chemical 
Weapons Convention Implementation Act of 1998, Public Law 105-277, 
Division I, 112 Stat. 2681-858. See U.S. Congress. Senate. Committee on 
the Judiciary. Chemical Weapons Implementing Legislation S. Hrg. 105-
552, May 13, 1997; Congressional Record, October 21, 1998, pp. S12744-
S12748 (daily ed.); and Kellman, Barry. The Advent of International 
Chemical Regulation: The Chemical Weapons Convention Implementation 
Act. Journal of Legislation, v. 25, 1999, p. 117.
---------------------------------------------------------------------------
    Judicial concern for constitutional requirements is also 
evident in Power Authority of New York v. Federal Power 
Commission, supra, where, as previously noted, the court 
declined to view a Senate ``reservation'' as part of the treaty 
to which it was attached, preferring instead to view the 
reservation as merely an expression of ``the Senate's desires'' 
and of ``domestic policy.'' \38\ The Senate's reservation, 
which was appended to a bilateral treaty with Canada allocating 
the waters of the Niagara River for power development, 
specified that the United States reserved the right to 
redevelop its share of the river waters by an act of Congress 
and that redevelopment projects in such waters were prohibited 
until authorized by congressional enactment. In characterizing 
the reservation as purely domestic and hence not part of the 
treaty, the Circuit Court avoided possible holdings that the 
entire treaty was void for want of ``international concern'' 
and that the Senate was unconstitutionally ``legislating'' 
through ``reservation'' without the concurrence of the House of 
Representatives inasmuch as the reservation would have 
temporarily suspended the operation of existing law.\39\
---------------------------------------------------------------------------
    \38\ 247 F. 2d 538 (D.C. Cir. 1957), jud. vac. and rem. for 
mootness sub. nom. American Public Power Assn. v. Power Authority of 
New York, 355 U.S. 64 (1957). A pair of more recent cases involving 
international agreements the resolution of which are based on 
constitutional considerations are McMullen v. United States, 989 F. 2d 
603 (2d Cir.), cert. denied, 510 U.S. 913 (1993) (Supplemental 
Extradition Treaty with United Kingdom eliminating political offense 
exception held not to constitute bill of attainder as applied 
retroactively and not to violate separation of powers doctrine by 
allegedly altering jurisdiction of the courts), and Swearingen v. 
United States, 565 F. Supp. 1019 (D. Colo. 1983) (agreement which 
created an exemption from taxation of income of U.S. citizens, contrary 
to the provisions of the Internal Revenue Code, was in contravention of 
the exclusive constitutional authority of the House of Representatives 
to originate all bills for raising revenue).
    \39\ See text accompanying notes 28-29 supra. The Power Authority 
case notwithstanding, Senate reservations are generally deemed part of 
the treaty to which they are made and held effective as domestic law in 
the United States. Rest. 3d, Sec. 314(1), Comment b. Moreover, a 
dissenting opinion in the case indicated that the Senate, by its 
reservation ``has not sought to limit the participation of the Congress 
at large and the President in decisions regarding domestic policy. It 
is a case in which the Senate has sought to enlarge their 
participation. 247 F. 2d at 547 (dissenting opinion of Judge Bastian).
---------------------------------------------------------------------------

                       treaties as law of the land

     By virtue of the supremacy clause of the Constitution 
(Article VI, Clause 2), a treaty which is concluded compatibly 
with applicable constitutional requirements of the type 
previously discussed may have status as the ``Supreme Law of 
the Land'' along with Federal statutes and the Constitution 
itself. However, a treaty's effectiveness as domestic law of 
the United States does not result automatically upon its entry 
into force on the international level, but occurs only where 
the instrument is ``self-executing,'' that is, where it 
operates without any necessity for implementing legislation. 
The classic exposition of this principle is provided by Chief 
Justice Marshall in Foster v. Neilson:
          * * * 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.\40\
---------------------------------------------------------------------------
    \40\ 2 Pet. (27 U.S.) 253, 314 (1829). See generally Vazquez, 
Carlos Manuel. The Four Doctrines of Self-Executing Treaties. American 
Journal of International Law, v. 89, 1995, p. 695.

    Application of this general rule seems relatively simple 
where the text of a treaty expressly recognizes the necessity 
for implementing legislation or where the subject matter of the 
treaty falls within an area traditionally regarded as requiring 
congressional effectuation by statute. Concerning the latter 
situation there appears to be general agreement that in view of 
Congress' exclusive power of appropriations (Article 1, Section 
9, Clause 7) a treaty provision authorizing the payment of 
money is not self-executing.\41\ Similarly, an implementing 
statute also seems required in connection with treaties which 
specify international crimes or criminal sanctions for 
particular activities.\42\ In this connection, it has been 
noted that ``[c]riminal law to implement the foreign relations 
of the United States is wholly statutory.'' \43\ Moreover, in 
light of Congress' power under Article I, Section 8, Clause 11, 
``to declare War,'' it seems to be generally assumed that a 
treaty would not be sufficient of itself to place the United 
States in a state of war.\44\ Concerning the general rule that 
treaties which pertain to the aforementioned matters require 
congressional implementation, it has been observed that:
---------------------------------------------------------------------------
    \41\ Rest. 3d, Sec. 111, Comment i, and Henkin 1996, p. 203. The 
House of Representatives early asserted its prerogatives by reserving a 
right of independent judgment regarding monies required to be paid 
under the Jay Treaty of 1796. Jefferson's Manual, p. 297; 
Constitution--Analysis and Interpretation, p. 480. In Turner v. 
American Baptist Missionary Union, 24 F. Cas. 344 (No. 14,251) 347 
(C.C. Mich. 1852), the Circuit court stated: A treaty under the Federal 
Constitution is declared to be the supreme law of the land. This, 
unquestionably, applies to all treaties, where the treatymaking power, 
without the aid of Congress, can carry it into effect. It is not, 
however, and cannot be the supreme law of the land, where the 
concurrence of Congress is necessary to give it effect. Until this 
power is exercised, as where the appropriation of money is required, 
the treaty is not perfect. It is not operative, in the sense of the 
Constitution, as money cannot be appropriated by the treatymaking 
power. This results from the limitations of our government. The action 
of no department of the government, can be regarded as law, until it 
shall have all the sanctions required by the Constitution to make it 
such. As well might be contended, that an ordinary act of Congress, 
without the signature of the President, was a law, as that a treaty 
which engages to pay a sum of money is in itself law. And in such a 
case, the representatives of the people and the States, exercise their 
own judgments in granting or withholding the money. They act upon their 
own responsibility, and not upon the responsibility of the treatymaking 
power.
    \42\ Rest. 3d, Sec. 111, Comment i; Henkin 1996, p. 203. In The 
Over the Top, 5 F. 2d 838, 845 (D. Conn. 1925), a district court stated 
that-- * * * It is not the function of treaties to enact the fiscal or 
criminal law of a nation. For this purpose no treaty is self-executing. 
Congress may be under a duty to enact that which has been agreed upon 
treaty, but duty and its performance are two separate and distinct 
things. Nor is there any doubt that the treatymaking power has its 
limitations. What these are has never been defined, perhaps never need 
be defined. Certain it is that no part of the criminal law of this 
country has ever been enacted by treaty.
    \43\ Rest. 3d, Sec. 111, Reporters' Note 6, citing U.S. 
Constitution, Article I, Section 8, ``giving Congress power `to define 
and punish Piracies and Felonies committed on the high Seas, and 
Offences against the Law of Nations.' ''
    \44\ Rest. 3d, Sec. 111, Comment i; Henkin 1996, p. 203.
---------------------------------------------------------------------------
          * * * There is no definitive authority for the rule * 
        * * that agreements on some subjects cannot be self-
        executing. That a subject is within the legislative 
        power of Congress does not preclude a treaty on the 
        same subject. * * * No particular clause of the 
        Constitution conferring power on Congress states or 
        clearly implies that the power can be exercised only by 
        Congress, not by the treaty-makers. (Contrast the 
        provision that Congress shall have the power to 
        `exercise exclusive legislation in all Cases 
        whatsoever' over the District of Columbia and other 
        places acquired for `needful buildings.' U.S. 
        Constitution, Article 1, Section 8, clause 17.) * * * 
        The power of Congress to declare war is not 
        characterized or designated in any way that would 
        distinguish it from, say, the power to regulate 
        commerce with foreign nations, yet regulation of such 
        commerce is surely a proper subject for a treaty. The 
        provision that ``No money shall be drawn from the 
        Treasury, but in Consequence of Appropriations made by 
        Law'' lends itself better to the suggestion that an 
        international agreement cannot itself ``appropriate 
        money.'' Even here, it might have been possible to 
        conclude that since treaties are declared to be ``law'' 
        (Art. VI) and are treated as equal to an act of 
        Congress for other purposes, an appropriation of funds 
        through an international agreement is an appropriation 
        ``made by law.''
          * * * The principle declared * * * is nevertheless 
        generally assumed for the cases given.\45\
---------------------------------------------------------------------------
    \45\ Rest. 3d, Sec. 111, Reporters' Note 6.

    Apart from instances where the terms of a treaty expressly 
contemplate implementing legislation or where such legislation 
is traditionally required owing to the nature of a particular 
treaty provision, whether a treaty is self-executing or not is 
a matter of interpretation, initially for the Executive and 
ultimately for the courts in the event of litigation.\46\ 
Decisional criteria for resolving this issue have been 
variously and broadly phrased. Thus, it has been stated that 
``[i]n determining whether a treaty is self-executing courts 
look to the intent of the signatory parties as manifested by 
the language of the instrument, and, if the instrument is 
uncertain, recourse must be had to the circumstances 
surrounding its execution.'' \47\ Elsewhere it is maintained 
that where the self-executing nature of an international 
agreement is unclear, ``account must be taken of any statement 
by the President in concluding the agreement or in submitting 
it to the Senate for consent * * * and of any expression by the 
Senate * * * in dealing with the agreement.'' \48\ 
Alternatively, it is urged that reference should be made to 
``the purposes of the treaty and the objectives of its 
creators, the existence of domestic procedures and institutions 
appropriate for direct implementation, the availability and 
feasibility of alternate enforcement methods, and the immediate 
and long-range social consequences of self- or non-self-
execution.'' \49\
---------------------------------------------------------------------------
    \46\ Ibid. Sec. 111, Comment h. See also Whiteman, Marjorie, Digest 
of International Law, v. 14, 1970, pp. 312-313. Henkin notes that 
sometimes ``federal legislation adopted prior to the treaty (ane even 
for other purposes) may be available to implement a treaty obligation; 
sometimes the President may have authority to carry out those 
obligations without Congressional authorization. State law may also 
serve to implement non-self-executing obligations.'' Henkin 1996, p. 
200.
    The Senate included an express declaration in the resolutions of 
ratification for various human rights treaties stating that the treaty 
is not self-executing; the declaration was later included in the U.S. 
instrument of ratification for the treaty. See Congressional Record, v. 
136, Oct. 1, 1990, p. 36198 and Nash (Leich), Marian, Contemporary 
Practice of the United States Relating to International Law. American 
Journal of International Law, v. 89, 1995, pp. 109-111 (International 
Covenant on Civil and Political Rights (ICCPR)); Congressional Record, 
v. 138, April 2, 1992, p. 8071, and Leich, Marian Nash, Contemporary 
Practice of the United States Relating to International Law. American 
Journal of International Law, v. 85, 1991, pp. 335-337 (Convention 
Against Torture and Other Cruel, Inhuman or Degrading Treatment or 
Punishment (Torture Convention)); and Congressional Record, v. 140, 
June 7, 1994, p. 8071 and Nash (Leich), Marian. Contemporary Practice 
of the United States Relating to International Law. American Journal of 
International Law, v. 88, 1994, pp. 721-728 (International Convention 
on the Elimination of All Forms of Racial Discrimination (Race 
Convention)). For the text of the U.S. instruments of ratification, see 
United Nations. Multilateral Treaties Deposited with the Secretary-
General; Status as at 31 December 1996. U.N. Doc. ST/LEG/SER.E/15, 
1997, p. 101 (Race Convention), p. 130 (ICCPR), and p. 191 (Torture 
Convention). Courts have subsequently denied private claims under these 
treaties. See, for example, Iguarta de la Rosa v. United States, 32 F. 
3d 8 (1st Cir. 1994) (ICCPR) and Barapind v. Reno, 72 F. Supp. 2d 1132 
(E.D. Cal. 1994) (Torture Convention).
    \47\ Diggs v. Richardson, 555 F. 2d 848, 851 (D.C. Cir. 1976).
    \48\ Rest. 3d, Sec. 111, Comment h.
    \49\ People of Saipan v. United States Department of Interior, 502 
F. 2d 90 (9th Cir. 1974), cert. denied, 420 U.S. 1003 (1975). In 
Frolova v. Union of Soviet Socialist Republics, 761 F. 2d 370, 373 (7th 
Cir. 1985), the court listed the following as factors that courts 
consider in discerning the intent of the treaty parties as to whether a 
treaty is self-executing: ``(1) the language and purposes of the 
agreement as a whole; (2) the circumstances surrounding its execution; 
(3) the nature of the obligations imposed by the agreement; (4) the 
availability and feasibility of alternative enforcement mechanisms; (5) 
the implications of permitting a private right of action; and (6) the 
capability of the judiciary to resolve the dispute.''
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    Where a treaty is deemed to be self-executing, any 
conflicting provisions of State law must yield. This principle, 
which is expressly enshrined in the supremacy clause of the 
Constitution, was early affirmed by the Supreme Court in Ware 
v. Hylton.\50\ According to Justice Chase:
---------------------------------------------------------------------------
    \50\ 3 Dall. (3 U.S.) 199 (1796).
---------------------------------------------------------------------------
          A treaty cannot be the supreme law of the land, that 
        is, of all the United States, if any act of a State 
        Legislature can stand in its way. If the Constitution 
        of a State * * * must give way to a treaty, and fall 
        before it; can it be questioned, whether the less 
        power, an act of the State Legislature, must not be 
        prostrate? It is the declared will of the people of the 
        United States, that every treaty made by the authority 
        of the United States, shall be superior to the 
        Constitution and laws of any individual State; and 
        their will alone is to decide. If a law of a State, 
        contrary to a treaty, is not void, but voidable only, 
        by a repeal, or nullification by a State Legislature, 
        this certain consequence follows, that the will of a 
        small part of the United States may control or defeat 
        the will of the whole.\51\
---------------------------------------------------------------------------
    \51\ Ibid. at 236-237. The principle has been reaffirmed by the 
Court in numerous cases. For additional case authority, see 
Constitution--Analysis and Interpretation, pp. 472-474.

    In the event of a conflict between a self-executing treaty 
and a Federal statute, it is well-settled that legal primacy 
will be accorded the measure which is later in time, albeit the 
courts will endeavor to harmonize the respective international 
and domestic obligations if possible. As indicated by the 
Supreme Court in Whitney v. Robertson:
          By the Constitution a treaty is placed on the same 
        footing, and made of like obligation, with an act of 
        legislation. Both are declared by that instrument to be 
        the supreme law of the land, and no superior efficacy 
        is given to either over the other. When the two relate 
        to the same subject, the courts will always endeavor to 
        construe them so as to give effect to both, if that can 
        be done without violating the language of either; but 
        if the two are inconsistent, the one last in date will 
        control the other, provided always the stipulation of 
        the treaty on the subject is self-executing. If the 
        country with which the treaty is made is dissatisfied 
        with the action of the legislative department, it may 
        present its complaint to the executive head of the 
        government and take such other measures as it may deem 
        essential for the protection of its interests. The 
        courts can afford no redress. Whether the complaining 
        nation has just cause or our country was justified in 
        its legislation, are not matters for judicial 
        cognizance.\52\
---------------------------------------------------------------------------
    \52\ 124 U.S. 581, 594 (1888). The Court has repeated the rule in 
many cases. See discussion in Constitution--Analysis and 
Interpretation, pp. 478-479, and Breard v. Greene, 523 U.S. 371, 376-77 
(1998).

    If a particular treaty is not self-executing, and, 
accordingly, requires legislative implementation to become law 
of the land, Congress may enact such legislation 
notwithstanding that the subject matter of the treaty would 
normally be beyond congressional competence. This result arises 
by virtue of the necessary and proper clause of the 
Constitution (Article I, Section 8, Clause 18) which authorizes 
Congress to make all laws necessary and proper to effectuate 
not only its expressly delegated powers, but also ``all other 
Powers vested by this Constitution in the government of the 
United States or in any Department or Officer thereof.'' 
Application of this principle seems most evident in Missouri v. 
Holland \53\ where Justice Holmes sustained both a treaty and 
an implementing act even though comparable legislation, when 
unaided by a treaty, had previously been declared invalid by 
the courts. Concerning this bootstrapping effect on the treaty 
power it has been observed that:
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    \53\ 252 U.S. 416. See also Neely v. Henkel, 180 U.S. 109, 121 
(1901), indicating that the necessary and proper clause of the 
Constitution is sufficient authority for Congress ``to enact such 
legislation as is appropriate to give efficacy to any stipulations 
which it is competent for the President by and with the advice and 
consent of the Senate to insert in a treaty with a foreign power.'' See 
generally Constitution--Analysis and Interpretation, pp. 480-482; Rest. 
3d, Sec. 111, Comment j.
---------------------------------------------------------------------------
          * * * [T]he treaty power cannot purport to amend the 
        Constitution by adding to the list of Congress' 
        enumerated powers, but having acted, the consequence 
        will often be that it has provided Congress with an 
        opportunity to enact measures which independently of a 
        treaty Congress could not pass; the only question that 
        can be raised as to such measures will be whether they 
        are necessary and proper measures for carrying of the 
        treaty in question into operation.\54\
---------------------------------------------------------------------------
    \54\ Constitution--Analysis and Interpretation, pp. 481-482.

    To the foregoing, it may be added that where a treaty 
requires implementing legislation for its effectuation, 
strictly speaking it is the statute and not the treaty which is 
the law of the land for the courts.\55\ A caveat to this 
proposition exists, however, when the treaty itself is 
incorporated as part of the statute.\56\
---------------------------------------------------------------------------
    \55\ Hopson v. Kreps, 622 F. 2d 1375 (9th Cir. 1980); H.J. Justin & 
Sons Inc. v. Brown, 519 F. Supp. 1383, 1390 (E.D. Cal. 1981).
    \56\ Henkin 1996, p. 200. Note, however, Rest. 3d, Sec. 111, 
Comment h: ``* * * strictly, it is the implementing legislation, rather 
than the agreement itself, that is given effect as law in the United 
States. That is true even when a non-self-executing agreement is 
`enacted' by, or incorporated in, implementing legislation.''
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                      B. Executive Agreements \57\
---------------------------------------------------------------------------

    \57\ Executive agreements are also discussed in Chapters II, III, 
IX, and X.
---------------------------------------------------------------------------
    Reference to the text of the Constitution suggests the 
preeminent legal status of the treaty mode of agreement-making. 
Treaties, for example, are made only by the President and two-
thirds of the Senate (Article II, Section 2, Clause 2), form 
part of the ``Supreme Law of the Land'' (Article VI, Clause 2), 
and create a basis for invoking the jurisdiction of the Federal 
courts (Article III, Section 2, Clause 1). Moreover, the States 
are absolutely prohibited from entering into any treaty 
(Article I, Section 10, Clause 1). While the Constitution thus 
expressly references the treaty mode four times, only once does 
the text of the Nation's fundamental law appear to recognize 
the existence of other types of international instruments, as 
in the prohibition against the States from concluding any 
``Agreement or Compact'' with a foreign power in the absence of 
congressional approbation (Article I Section 10, Clause 3).
    On the other hand, the actual practice of the Nation under 
the Constitution confirms a numerical primacy of agreements 
which have not been concluded in the form of treaties.\58\ Such 
agreements are typically denominated as ``executive 
agreements'' and may be further categorized as follows: (1) 
congressional-executive agreements sanctioned by the joint 
authority of the President and both Houses of Congress; (2) 
agreements concluded pursuant to existing treaties; and (3) 
Presidential or ``sole'' executive agreements made by the 
President on his independent constitutional authority.
---------------------------------------------------------------------------
    \58\ The editors of the Constitution--Analysis and Interpretation, 
pp. 494-495, observe that-Once a stepchild in the family in which 
treaties were the preferred offspring, the executive agreement has 
surpassed in number and perhaps in international influence the treaty 
formally signed, submitted for ratification to the Senate, and 
proclaimed upon ratification.
    During the first half-century of its independence, the United 
States was party to 60 treaties but to only 27 published executive 
agreements. By the beginning of World War II, there had been concluded 
approximately 800 treaties and 1,200 executive agreements * * *. In the 
period since 1939, executive agreements have comprised more than 90 
percent of the international agreements concluded.
---------------------------------------------------------------------------
    In view of the numerical superiority of executive 
agreements in actual practice as contrasted with the textual 
primacy accorded the treaty mode by the Constitution, and owing 
as well to the controversial nature of particular executive 
agreements, it is perhaps not surprising that questions have 
been raised concerning the exclusive scope vel non of the 
treaty clause and the possible existence of a substantive 
distinction between treaties and executive agreements. 
Notwithstanding substantial scholarship devoted to ascertain 
the Framers' intentions concerning these matters, the 
understanding of the Drafters remains largely obscure.\59\ By 
virtue of actual practice and judicial edification, however, it 
is now well-settled that the treaty mode is not an exclusive 
means of agreement-making for the United States and that 
executive agreements may validly co-exist with treaties under 
the Constitution. Somewhat less clear, it seems, is whether any 
subject that is dealt with by treaty may also be effected by an 
executive agreement, particularly by an agreement concluded by 
the President on his sole constitutional authority.\60\ The 
succeeding discussion further develops these points by 
presenting a review of the practice and case law associated 
with each of the three types of executive agreements.
---------------------------------------------------------------------------
    \59\ The literature is extensive, but useful reference may be made 
to: Weinfeld, Abraham. What did the Framers of the Federal Constitution 
Mean by ``Agreements or Compacts?'' University of Chicago Law Review, 
v. 3, 1936, p. 453; McClure, Wallace. International Executive 
Agreements. 1941 (hereafter cited as McClure); McDougal, Myres and 
Lans, Asher. Treaties and Congressional-Executive or Presidential 
Agreements: Interchangeable Instruments of National Policy. Yale Law 
Journal, v. 54, 1945, pp. 181 and 534 (hereafter cited as McDougal and 
Lans); Borchard, Edwin. Shall the Executive Agreement Replace the 
Treaty? Yale Law Journal, v. 53, 1944, p. 664 (hereafter cited as 
Borchard 1944); Borchard, E. Treaties and Executive Agreements--A 
Reply. Yale Law Journal, v. 54, 1945, p. 616; Wright, Q. The United 
States and International Agreements. American Journal of International 
Law, v. 38, 1944, p. 341; Mathews, Craig. The Constitutional Power of 
the President to Conclude International Agreements. Yale Law Journal, 
v. 64, 1955, p. 345; Berger, Raoul. The Presidential Monopoly of 
Foreign Relations. Michigan Law Review, v. 71, 1972, p. 1; Henkin 1996, 
Chapter VII; and Slonim, Solomon. Congressional-Executive Agreements. 
Columbia Journal of Transnational Law, v. 14, 1975, p. 434 (hereafter 
cited as Slonim).
    \60\ See, for example, the statement of the Senate Foreign 
Relations Committee in its Report on the National Commitments 
Resolution, S. Res. 85, 91st Cong., 1st Sess. 1969, wherein it is 
maintained that ``[t]he traditional distinction between the treaty as 
the appropriate means of making significant political commitments and 
the executive agreement as the appropriate instrument for routine, 
nonpolitical arrangements has substantially broken down.'' S. Rept. 
129, 91st Cong., 1st Sess. 1969, p. 26.
---------------------------------------------------------------------------

                   congressional-executive agreements

     Congressional authorization for the conclusion of 
international agreements dates from the earliest days of the 
Nation's constitutional history. Thus, in 1790 Congress 
empowered the President to pay off the Revolutionary War debt 
by borrowing money from foreign countries ``upon terms 
advantageous to the United States'' and to conclude ``such 
other contracts respecting the said debt as shall be found for 
the interest of the said States.'' \61\ Two years later the 
Postmaster General was authorized to ``make arrangements with 
the postmasters in any foreign country for the reciprocal 
receipt and delivery of letters and packets, through the post-
offices.'' \62\ The authority for the conclusion of postal 
agreements was continued in later enactments and formed the 
basis of numerous postal ``conventions'' which were never 
submitted to the Senate.\63\ Over the years, Congress has 
authorized or sanctioned additional agreements concerning a 
wide variety of subjects including, inter alia, the protection 
of intellectual property rights,\64\ acquisition of 
territory,\65\ national participation in various international 
organizations,\66\ foreign trade,\67\ foreign military 
assistance,\68\ foreign economic assistance,\69\ atomic energy 
cooperation,\70\ and international fishery rights.\71\
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    \61\ Act of Aug. 4, 1790, ch. 43, Sec. 2, 1 Stat. 139.
    \62\ Act of Feb. 20, 1792, ch. 7, Sec. 26, 1 Stat. 239.
    \63\ See Crandall, Samuel. Treaties--Their Making and Enforcement. 
1916 (2d ed.), pp. 131-132 (hereafter cited as Crandall), and McDougal 
and Lans, pp. 239-240. Miller states the ``[p]ostal conventions are 
not, and with a very few exceptions, never have been submitted the the 
Senate as treaties.'' Miller, Hunter. Treaties and Other International 
Acts of the United States of America, v. 1, 1931, p. 7 (hereafter cited 
as Miller, Treaties). Current legislative authority for postal 
agreements is contained in 39 U.S.C. Sec. 407. See also 19 Op. Atty. 
Gen. 513 (1890) in support of the constitutionality of this practice.
    \64\ See Crandall, pp. 127-131. A recent example is the World Trade 
Organization (WTO) Agreement on the Trade-Related Aspects of 
Intellectual Property Rights, approved by Congress in sec. 101 of 
Public Law 103-465, 108 Stat. 4809, 4814.
    \65\ See the Joint Resolution of March 1, 1845, 5 Stat. 797, 
consenting to the admission of Texas into the Union upon specified 
conditions, and the Joint Resolution of Dec. 29, 1845, 9 Stat. 108, 
admitting Texas into the Union). See also the Joint Resolution of July 
7, 1898, 30 Stat. 750, annexing the Hawaiian Islands as part of the 
territory of the United States.
    \66\ See, for example, the Bretton Woods Agreement Act, 59 Stat. 
512 (1945) (International Bank for Resolution and Development and the 
International Monetary Fund), and various Joint Resolutions authorizing 
U.S. membership and participation in such organizations as the 
International Labor Organization, 48 Stat. 529 (1945); United Nations 
Relief and Rehabilitation Agency, 58 Stat. 122 (1944); International 
Refugee Organization, 61 Stat. 214 (1947); Food and Agricultural 
Organization, 59 Stat. 529 (1945); United Nations Educational, 
Scientific, and Cultural Organization, 60 Stat. 712 (1946); the World 
Health Organization, 62 Stat. 441 (1948).
    \67\ See the Tariff Act of 1890, Sec. 3, 26 Stat. 612, and of 1897, 
Sec. 3, 30 Stat. 203; the Reciprocal Trade Agreements Act of 1934, 
Sec. 350(a), 48 Stat. 943; the Trade Expansion Act of 1962, 19 U.S.C. 
Sec. 1821; the Trade Act of 1974, 19 U.S.C. Sec. Sec. 2111, 2115, 
2131(b), 2435; and the Omnibus Trade and Competitiveness Act of 1988, 
19 U.S.C. Sec. 2902.
    \68\ See the Lend-Lease Act of 1941, Sec. 3, 55 Stat. 31, and the 
Arms Export Control Act of 1976, 22 U.S.C. Sec. 2751.
    \69\ See the Foreign Assistance Act of 1961, as amended, 22 U.S.C. 
Sec. 2151 et seq., authorizing the President to furnish assistance to 
foreign nations ``on such terms and conditions as he may determine'' in 
such areas as agriculture, rural development, and nutrition, 22 U.S.C. 
Sec. 2151a; population planning and health, 22 U.S.C. Sec. 2151b; 
education and human resources development, 22 U.S.C. Sec. 2151c; and 
disaster assistance, 22 U.S.C. Sec. 2153.
    \70\ See Atomic Energy Act of 1954, as amended, 42 U.S.C. 
Sec. 2153.
    \71\ See Magnuson Fishery Conservation and Management Act of 1976, 
16 U.S.C. Sec. Sec. 1821, 1822.
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    The subject matter diversity of congressional-executive 
agreements is matched by the varying means by which Congress 
has authorized the conclusion of such agreements. Thus, 
Congress has enacted statutes providing authority in advance 
for the President to negotiate with other nations on a 
particular matter. This authority may be explicit,\72\ or, in 
the case of agreements concluded in conformity with a generally 
enunciated congressional policy, implied from the terms of the 
enactment.\73\ Legislative authorization for congressional-
executive agreements may also be effected by passage of a 
statute following the negotiation of a concluded agreement. 
Again, congressional approval may be explicit,\74\ or, implied, 
as in the case of legislation appropriating funds to carry out 
participation by the United States in an international 
organization.\75\
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    \72\ See, for example, sec. 202(a) of the Magnuson Fishery 
Conservation and Management Act of 1976, 16 U.S.C. Sec. 1822(a); secs. 
101 and 405 of the Trade Act of 1974, as amended, 19 U.S.C. 
Sec. Sec. 2111 and 2435; and sec. 405(c) of the International Religious 
Freedom Act of 1998, 22 U.S.C. Sec. 6445(c).
    \73\ See the Tariff Act of 1890, Sec. 3, 26 Stat. 612, providing 
that ``with a view to secure reciprocal trade with countries producing 
[specified articles,] * * * whenever, and so often as the President 
shall be satisfied that the Government of any country producing and 
exporting [specified articles] imposes duties or other exactions upon 
the agricultural or other products of the United States, which in view 
of the free introduction of such [specified articles], into the United 
States he may deem to be reciprocally unequal and unreasonable, he 
shall have the power and it shall be his duty to suspend, by 
proclamation * * * the provisions of the act relating to the free 
introduction of such [specified articles], the production of such 
country for such time as he shall deem just.'' Pursuant to this 
authority, 10 agreements were concluded by the President. See Crandall, 
p. 122. Note also sec. 111(b) of the Uruguay Round Agreements Act, 108 
Stat. 4819 (1994), authorizing the President to proclaim duty 
modifications and reductions pursuant to specified trade agreements 
negotiated under the auspices of the World Trade Organization (WTO).
    \74\ See, for example, the Bretton Woods Agreement Act of 1945, 59 
Stat. 512; sec. 2 of H.J. Res. 1227, Sept. 30, 1972, Public Law 92-448, 
86 Stat. 746, approving and authorizing the President to accept the 
Interim Agreement on Certain Measures with Respect to the Limitation of 
Strategic Offensive Arms, United States-Soviet Union, May 26, 1972, 23 
U.S.T. 3462; and sec. 101 of the Uruguay Round Agreements Act, 19 
U.S.C. Sec. 3511, approving agreements resulting from the GATT Uruguay 
Round of Multilateral Trade Negotiations.
    \75\ See 25 Stat. 155; Act of Mar. 2, 1889, 25 Stat. 957; Act of 
Apr. 7, 1934, 48 Stat. 534, making appropriations for American 
participation in the Pan-American Union Act of May 24, 1888, and secs. 
531 and 532 of the North American Free Trade Agreement (NAFTA) 
Implementation Act, 107 Stat. 2163-2164 (1993), authorizing U.S. 
participation in the Commission on Labor Cooperation and the Commission 
on Environmental Cooperation established under supplemental agreements 
to the North American Free Trade Agreement, as well as funds for the 
U.S. contribution to the each organization's annual budget. Congress 
did not, however, expressly approve the supplemental agreements. See 
also McDougal and Lans, p. 271, Henkin 1996, at pp. 215-216.
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    In regulating the use of congressional-executive 
agreements, Congress has specified in advance the general terms 
of negotiation \76\ and conditioned the effectiveness of 
particular agreements alternatively upon the enactment of 
implementing legislation,\77\ upon the legislative adoption of 
an approving concurrent resolution within a specified time 
following transmittal of the agreement to Congress,\78\ or upon 
the failure of Congress to adopt a disapproving concurrent \79\ 
or joint \80\ resolution within designated time periods. 
Furthermore, congressional approval of some agreements has been 
accompanied by conditions.\81\ The President is presently 
required by at least one statute to select Members of Congress 
from specified committees to serve as accredited advisers to 
American delegations attending international conferences, 
meeting, and negotiating sessions relating to trade 
agreements.\82\ Other legislation has required the President to 
consult with specified committees before entering into trade 
agreements.\83\
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    \76\ See sec. 123 of the Atomic Energy Act of 1954, as amended, 42 
U.S.C. Sec. 2153(a); sec. 107 of the Trade Act of 1974, as amended, 19 
U.S.C. Sec. 2117; and sec. 201(c) of the Magnuson Fishery Conservation 
and Management Act of 1976, as amended, 16 U.S.C. Sec. 1821(c).
    \77\ See sec. 102(e) of the Trade Act of 1974, 19 U.S.C. 
Sec. 2112(e), and sec. 1103 of the Omnibus Trade and Competitiveness 
Act of 1988, 19 U.S.C. Sec. 2903.
    \78\ See Sec. 405(c) of the Trade Act of 1974, 19 U.S.C. 
Sec. 2435(c) (1988). The constitutionality of this procedure was 
undermined by a pair of 1983 Supreme Court actions which overturned on 
separation of powers grounds one and two house resolutions disapproving 
of executive branch exercises of statutorily delegated authority. INS 
v. Chadha, 462 U.S. 919 (1983) and United States Senate and United 
States House of Representatives v. Federal Trade Commission, 463 U.S. 
1216 (1983). Accordingly, Congress in 1990 amended section 405(c) to 
substitute the enactment of a joint resolution for approval by 
concurrent resolution; the former complies with constitutionally 
specified requirements for enacting law, namely bicameral action and 
Presidential presentation. 19 U.S.C. Sec. 2434(c).
    \79\ See sec. 123(d) of the Atomic Energy Act of 1954, as amended, 
42 U.S.C. Sec. 2153(d), and sec. 36 of the Arms Export Control Act of 
1976, 22 U.S.C. Sec. 2776, subjecting any Presidential ``letter of 
offer'' to sell defense articles or services for $50 million or more, 
or any major defense equipment for $14 million or more, to this 
procedure unless the President certifies that a national emergency 
exists which requires the sale in the national security interests of 
the United States. For reasons set forth in note 78, supra, Congress 
has revised these provisions of law to require lawmaking in conformity 
with constitutionally prescribed procedures.
    \80\ See sec. 203 of the Magnuson Fishery Conservation and 
Management Act of 1976, 16 U.S.C. Sec. 1823.
    \81\ Congressional approval of the United Nations Headquarters 
Agreement was accompanied by the condition that ``any supplemental 
agreement entered into pursuant to section 5 of the Agreement * * * 
shall be submitted to Congress for approval.'' 61 Stat. 756, 758 
(1947). In accepting U.S. adherence to the International Refugee 
Organization, Congress specified that its approval ``is given upon 
condition and with reservation that no agreement shall be concluded on 
behalf of the United States and no action shall be taken by any 
officer, agency or any other person * * * (1) whereby any person shall 
be admitted to or settled or resettled in the United States or any of 
its Territories or possessions without prior approval thereof by the 
Congress * * * or (2) which will have the effect of abrogating, 
suspending, modifying, adding to, or superceding any of the immigration 
laws or any other laws of the United States.'' 61 Stat. 214 (1947).
    \82\ See sec. 161 of the Trade Act of 1974, 19 U.S.C. Sec. 2211.
    \83\ Sec. 1102 of the Omnibus Trade and Competitiveness Act of 
1988, 19 U.S.C. Sec. 2902.
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    The constitutionality of congressional-executive agreements 
appears to have been first raised before the Supreme Court in 
Field v. Clark.\84\ In Field it was alleged that section 3 of 
the Tariff Act of 1890,\85\ which authorized the President to 
suspend exemptions from import duties on specified articles 
unless reciprocity could be obtained with other nations, 
unconstitutionally delegated both the legislative and 
treatymaking power. Although no specific agreement was in 
issue, a number of reciprocal trade agreements had already been 
concluded pursuant to section 3.\86\ In meeting the objection 
that the Act unlawfully delegated Congress' legislative powers, 
the Court cited numerous statutory precedents dating from the 
early days of the Nation's constitutional history. The 
existence of these precedents permitted the Court summarily to 
dispose of the additional argument--that the treaty power had 
been unlawfully delegated--with the reply that ``[w]hat has 
been said [regarding the delegation of legislative authority] 
is equally applicable to the objection that the third section 
of the Act invests the President with treaty-making power * * * 
[T]he Court is of opinion that the third section of the Act of 
October 1, 1890, is not liable to the objection that it 
transfers legislative and treaty-making power to the 
President.'' \87\
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    \84\ 143 U.S. 649 (1892). Although the issue was not squarely 
presented, the Supreme Court, in Texas v. White, 7 Wall. (74 U.S.) 700 
(1868), and in Hawaii v. Mankichi, 190 U.S. 197 (1903), seemed 
implicitly to approve the bypassing of the treaty mode in the 
acquisition of Texas and Hawaii by the United States.
    \85\ 26 Stat. 612
    \86\ Crandall lists ten commercial agreements which were concluded 
under section 3 of the Tariff Act of 1890. See Crandall, p. 122. The 
decision in Field v. Clark, 143 U.S. 649 (1892), was rendered after six 
agreements had already become effective by proclamation.
    \87\ 143 U.S. at 694.
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    Twenty years later, in B. Altman & Co. v. United 
States,\88\ the Court held that a reciprocal trade agreement 
between the United States and France,\89\ concluded pursuant to 
section 3 of the Tariff Act of 1897,\90\ was a ``treaty'' for 
purposes of section 5 of the Circuit Court of Appeals Act of 
1891 \91\ permitting direct appeals to the Supreme Court in any 
case involving the validity or construction of a ``treaty.'' 
Although the Court acknowledged that the trade agreement was 
not a treaty in the technical sense of Article II, Section 2, 
of the Constitution, it did not inquire into the 
constitutionality of the authorizing legislation, preferring 
simply to characterize the issue as one of ascertaining 
Congress' intent under the Circuit Court of Appeals Act. 
According to the Court:
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    \88\ 224 U.S. 583 (1912).
    \89\ Commercial Agreement of May 30, 1898, United States-France, 30 
Stat. 1774.
    \90\ 30 Stat. 203.
    \91\ 26 Stat. 827-828.
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          [The Circuit Court of Appeals Act] was intended to 
        cut down and limit the jurisdiction of this court and 
        many cases were made final in the Circuit Court of 
        Appeals which theretofore came to this court, but it 
        was thought best to preserve the right to a review by 
        direct appeal or writ of error from a Circuit Court in 
        certain matters of importance, and, among others, those 
        involving the construction of treaties. We think that 
        the purpose of Congress was manifestly to permit rights 
        and obligations of that character to be passed upon in 
        the Federal Court of final resort, and that matters of 
        such vital importance, arising out of opposing 
        constructions of international compacts, sometimes 
        involving the peace of nations, should be subject to 
        direct and prompt review by the highest court of the 
        Nation. While it may be true that this commercial 
        agreement, made under authority of the Tariff Act of 
        1897, Sec. 3, was not a treaty possessing the dignity 
        of one requiring ratification by the Senate of the 
        United States, it was an international compact, 
        negotiated between the representatives of two sovereign 
        nations made in the name and on behalf of the 
        contracting countries, and dealing with important 
        commercial relations between the two countries, and was 
        proclaimed by the President. If not technically a 
        treaty requiring ratification, nevertheless it was a 
        compact authorized by the Congress of the United 
        States, negotiated and proclaimed under the authority 
        of its President. We think such a compact is a treaty 
        under the Circuit Court of Appeals Act, and, where its 
        construction is directly involved, as it is here, there 
        is a right of review by direct appeal to this 
        court.\92\
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    \92\ 224 U.S. at 601.

    Evidencing a similar lack of interpretative rigidity is 
Louis Wolf & Co. v. United States \93\ wherein the U.S. Court 
of Customs and Patent Appeals held that a United States-Cuba 
Trade Agreement of 1934,\94\ which had been effected under 
section 350(a) of the Tariff Act of 1930,\95\ was a 
``commercial convention'' within the meaning of treaties 
concluded by the United States with Norway \96\ and 
Austria.\97\ The latter two treaties exempted from 
unconditional most-favored-nation treatment goods accorded 
preferential treatment by the United States under a United 
States-Cuban Commercial Convention of 1902 or any other 
``commercial convention'' which might subsequently be concluded 
between the United States and Cuba. In holding that the 1934 
United States-Cuba Trade Agreement was a ``commercial 
convention'' within the meaning of the Austrian and Norwegian 
treaties, the court declared that:
---------------------------------------------------------------------------
    \93\ 107 F. 2d 819 (C.C.P.A. 1939)
    \94\ Agreement Respecting Reciprocal Trade, United States-Cuba, 
Aug. 24, 1934, 49 Stat. 3559.
    \95\ Sec. 350(a) of the Tariff Act of 1930, 46 Stat. 708, as added 
by the Reciprocal Trade Agreements Act of 1934, 48 Stat. 943.
    \96\ Treaty of Friendship, Commerce, and Consular Rights, United 
States-Norway, June 5, 1928, 47 Stat. 2135.
    \97\ Treaty of Friendship, Commerce, and Consular Rights, United 
States-Austria, June 19, 1928, 47 Stat. 1876.
---------------------------------------------------------------------------
          * * * We think that by the use of the term 
        ``commercial convention'' such a trade agreement as the 
        Cuban Trade Agreement of 1934 was intended to be 
        included, and it is our opinion that that agreement is 
        a commercial convention although it was not ratified by 
        the Senate. It is true that the treaties with Norway 
        and Austria refer to the Cuban treaty of 1902 as a 
        ``Commercial Convention'' and that it was ratified by 
        the Senate. The treaty of 1902 refers to itself as a 
        ``convention.'' We think it well settled that the term 
        ``commercial convention'' is broad enough to include 
        commercial conventions which are ratified by the Senate 
        when negotiated by the executive department of the 
        Government, but that it also includes certain 
        commercial agreements which may be authorized by 
        Congress, if such conventions are within the powers so 
        delegated.
          On this phase of the case we think it proper to say 
        that the President, pursuant to acts of Congress, 
        frequently has entered into agreements with foreign 
        States.\98\
---------------------------------------------------------------------------
    \98\ 107 F. 2d at 826.

    While the issue concerning the constitutionality of 
congressional-executive agreements was either summarily 
resolved or substantially avoided in Field v. Clark, Altman, 
and Louis Wolf, a more detailed resolution of this question was 
evidenced by the U.S. Customs Court in Star-Kist Foods, Inc. v. 
United States.\99\ In Star-Kist, the court held that a trade 
agreement between the United States and Iceland,\100\ which was 
authorized by section 350(a) of the Tariff Act of 1930,\101\ 
was not an unconstitutional delegation of the treaty power. In 
determining that the Icelandic agreement was ``not a treaty 
requiring concurrence by the United States Senate within the 
meaning of the term, as used in the Constitution,'' the court 
relied heavily upon Field v. Clark, Altman, and Louis 
Wolf.\102\ Specifically noteworthy, however, is the concurring 
opinion of Judge Mollison which not only assessed the 
precedential significance of Field v. Clark, but also 
articulated a theoretical basis for congressional-executive 
agreements in the area of foreign trade. According to Judge 
Mollison:
---------------------------------------------------------------------------
    \99\ 169 F. Supp. 268 (Cust. Ct. 1958), aff'd, 257 F. 2d 472 
(C.C.P.A. 1959).
    \100\ Agreement Respecting Reciprocal Trade, United States-Iceland, 
Aug. 27, 1943, 57 Stat. 1075.
    \101\ Sec. 350(a) of the Tariff Act of 1930, 46 Stat. 708, as added 
by the Reciprocal Trade Agreements Act of 1934, 48 Stat. 943.
    \102\ 169 F. Supp. at 278-280.
---------------------------------------------------------------------------
          The decision in Field v. Clark * * * is supporting 
        authority for the view of Congress, when it enacted the 
        Reciprocal Trade Agreements Act of 1934 [adding section 
        350(a) to the Tariff Act of 1930], that it had the 
        authority to authorize and empower the President, under 
        prescribed standards and upon specified limitations 
        upon his discretion, to negotiate and conclude 
        reciprocal trade agreements and to make them effective 
        by proclamation. The effect of the decision in Field v. 
        Clark, coming after six of the ten reciprocal trade 
        agreements had been concluded and made effective by 
        proclamation, was an approval of such trade agreements 
        and the exercise of such Executive authority and 
        practice.
          * * * It can hardly be doubted that the Congress has 
        the authority, in regulating foreign trade and 
        commerce, to authorize the President, under prescribed 
        standards and limitations, to negotiate, conclude, and 
        make effective by proclamation reciprocal trade 
        agreements lowering customs duties in return for 
        concessions granted the United States.\103\
---------------------------------------------------------------------------
    \103\ Ibid. at 287-288

    On appeal the U.S. Court of Customs and Patent Appeals 
affirmed the holding of the U.S. Customs Court and further 
amplified the constitutional doctrine supporting congressional-
executive agreements in the area of foreign trade:
          * * * From reading the act, it is apparent that 
        Congress concluded that the promotion of foreign trade 
        required that the tariff barriers in this and other 
        countries be modified on a negotiated basis. Since the 
        President has the responsibility of conducting the 
        foreign affairs of this country generally, it gave to 
        him the added responsibility of negotiating the 
        agreements in pursuance of the spirit of the act. Such 
        a procedure is not without precedent nor judicial 
        approval [citing, inter alia, the Altman and Louis Wolf 
        cases, supra] \104\
---------------------------------------------------------------------------
    \104\ 275 F. 2d at 483. The court also relied on United States v. 
Curtis-Wright Export Corp., 299 U.S. 304 (1936); United States v. 
Belmont, 301 U.S. 324 (1937), and United States v. Pink, 315 U.S. 203 
(1942). For a discussion of these cases, see text accompanying notes 
135-144 and 151-152, infra.

    The question whether trade agreements can constitutionally 
be entered into as congressional-executive agreements rather 
than treaties has arisen in a judicial challenge to the North 
American Free Trade Agreement (NAFTA), in which it was alleged 
that the failure to use the treaty process rendered the 
agreement and its implementing legislation unconstitutional. In 
Made in the USA Foundation v. United States, a Federal District 
Court held in July 1999 that ``the President had the authority 
to negotiate and conclude NAFTA pursuant to his executive 
authority and pursuant to the authority granted to him by 
Congress in accordance with the terms of the Omnibus Trade and 
Competitiveness Act of 1988 * * * and section 151 of the Trade 
Act of 1974 * * * and as further approved by the [NAFTA] 
Implementation Act.'' \105\ The court concluded that the 
foreign commerce clause, combined with the necessary and proper 
clause and the President's Article II foreign relations power, 
was a constitutionally sufficient basis for the NAFTA:
---------------------------------------------------------------------------
    \105\ Made in the USA Foundation et al. v. United States, 56 F. 
Supp. 2d 1226 (N.D. Ala 1999). The decision has been appealed to the 
U.S. Court of Appeals for the Eleventh Circuit.
    The issue had earlier emerged during Congress' consideration in 
1994 of implementing legislation for trade agreements concluded during 
the GATT Uruguay Round of Multilateral Trade Negotiations. The question 
originally was posed because of the perceived effect of the agreements 
on states. The agreements were negotiated and submitted to Congress for 
expedited approval and implementation pursuant to the statutes cited in 
the Made in the USA Foundation case, that is, the Omnibus Trade and 
Competitiveness Act of 1988, Public Law 100-418, as amended, and 
section 151 of the Trade Act of 1974, which together required an 
``implementing bill'' containing a provision expressly approving the 
agreements as well as any statutory provisions ``necessary or 
appropriate'' to implement them. The agreements were ultimately 
approved by both Houses of Congress in the Uruguay Round Agreements 
Act, Public Law 103-465. Legal arguments and discussion may be found in 
``Memorandum to Ambassador Michael Kantor, U.S. Trade Representative, 
from Walter Dellinger, Assistant Attorney General, Office of Legal 
Counsel, re: Treaty Ratification of the GATT Uruguay Round: Additional 
Memorandum'' (November 22, 1994) http://www.usdoj.gov/olc/
1994opinions.htm. See also U.S. Congress. Senate. Committee on 
Commerce, Science, and Transportation. S. 2467, GATT Implementing 
Legislation. S. Hrg. 103-823, October-November 1994; Henkin 1996, pp. 
218-219; and Vagts, Detlev F. International Agreements, the Senate and 
the Constitution. Columbia Journal of Transnational Law, v. 36, 1997, 
p. 143.
---------------------------------------------------------------------------
          * * * [W]hile the reason(s) for the existence and 
        adoption of the Treaty Clause and its scope are 
        debatable, the plenary scope of the Commerce Clause is 
        clear. There exists no reason to apply a limiting 
        construction upon the Foreign Commerce Clause or to 
        assume that the Clause was not meant to give Congress 
        the power to approve those agreements that are 
        `necessary and proper' in regulating foreign commerce. 
        It is impossible to definitively conclude that the 
        Framers intended the regulation of foreign commerce to 
        be subject to the rigors of the Treaty clause procedure 
        when commercial agreements with foreign nations are 
        involved. Given the [Supreme] Court's language in 
        Gibbons v. Ogden, the power of Congress to regulate 
        foreign commerce with foreign nations is so extensive 
        that it is reasonably arguable * * * that no `treaty' 
        affecting commerce with foreign nations is valid unless 
        adopted by Congress as a whole. In the absence of 
        specific limiting language in or relating to the Treaty 
        Clause, I am led to conclude that the foreign commerce 
        power of Congress is at least concurrent with the 
        Treaty Clause power when an agreement, as is the case 
        here, is dominated by provisions specifically related 
        to foreign commerce and has other provisions which are 
        reasonably `necessary and proper' for `carrying all 
        others into execution.' * * * Further, I note that the 
        President, in negotiating the Agreement in connection 
        with the fast track legislation, is acting pursuant to 
        his constitutional responsibility for conducting the 
        Nation's foreign affairs and pursuant to a grant of 
        authority from Congress.\106\
---------------------------------------------------------------------------
    \106\ Ibid. at 1319-22 (citations omitted). Gibbons v. Ogden, 22 
U.S. 1 (1824) recognized the plenary nature of Congress' power under 
the commerce clause. The court also stated that it had been persuaded 
by language in Edwards v. Carter, 580 F. 2d 1055, 1057-58 (D.C. Cir.), 
cert. denied, 436 U.S. 907 (1978), addressing concurrent power under 
the property clause (U.S. Constitution, Article IV, Section 3, Clause 
2). Edwards considered whether the clause, which authorizes Congress 
``to dispose of and make all needful Rules and Regulations respecting 
the Territory or other Property belonging to the United States,'' 
prevented the President and the Senate from transferring ownership of 
the Panama Canal pursuant to a treaty. The Edwards court stated in part 
that ``on its face, the Property Cause is intended not to restrict the 
scope of the Treaty Clause, but, rather is intended to permit Congress 
to accomplish through legislation what may concurrently be accomplished 
through other means provided in the Constitution.'' 580 F. 2d at 1058, 
as quoted in 56 F. Supp. 2d 1309.

    The Supreme Court earlier addressed the question of 
congressional-executive agreements in Weinberger v. Rossi,\107\ 
where it held that the term ``treaty,'' as used in a statute 
prohibiting employment discrimination against U.S. citizens on 
American military bases abroad unless permitted by ``treaty,'' 
embraced a base labor agreement between the United States and 
the Philippines authorizing the preferential hiring of Filipino 
nationals.\108\ The Court deemed the issue as ``solely one of 
statutory interpretation'' and noted, inter alia, the 
imprecision of Congress' use of the term ``treaty'' in various 
legislative enactments and the rule of construction favoring 
the harmonization of statutory requirements with the Nation's 
international obligations.\109\
---------------------------------------------------------------------------
    \107\ 456 U.S. 25 (1982).
    \108\ At issue in the case was the scope of section 106 of Public 
Law 92-129, 85 Stat. 355, 5 U.S.C. Sec. 7201 note, prohibiting 
employment discrimination of the type described. Earlier, in 1944, 
Congress had authorized the President, ``by such means as he finds 
appropriate,'' to acquire by negotiations with the President of the 
Philippines, military bases ``he may deem necessary for the protection 
of the Philippine Islands and of the United States.'' 22 U.S.C. 
Sec. 1392. Pursuant to this authority, the President concluded the 
Military Bases Agreement of March 14, 1947, 62 Stat. 4019, as well as 
the Base Labor Agreement of May 27, 1968, 19 U.S.T. 5892, the latter 
providing for the preferential hiring of Filipino citizens at American 
military facilities in the Philippines.
    \109\ 456 U.S. at 26, 31, and 32. The Court stated that ``[a]t the 
time Sec. 106 [of Public Law 92-129] was enacted, there were in force 
12 agreements in addition to the [Philippine base labor agreement] 
providing for preferential hiring of local national on United States 
military [bases] over seas. Since the time of the enactment of 
Sec. 106, four more such agreements have been concluded, and none of 
these were submitted to the Senate for its advice and consent * * * We 
think that some affirmative expression of congressional intent to 
abrogate the United States' international obligations is required in 
order to construe the word `treaty' in Sec. 106 as meaning only Article 
II treaties.'' Ibid. at 32.
---------------------------------------------------------------------------
    The use of congressional-executive agreements in the 
extradition area was recently affirmed in Ntakirutimana v. 
Reno, which challenged the constitutionality of the 1995 
extradition agreement between the United States and the 
International Criminal Tribunal for Rwanda.\110\ The agreement 
had been entered into as an executive agreement and implemented 
pursuant to Section 1342 of Public Law 104-106.\111\ Petitioner 
argued that a treaty was constitutionally required for an 
extradition, but the Federal Circuit Court of Appeals 
disagreed, finding that neither the text of the Constitution, 
constitutional history, nor historical practice supported such 
a requirement. Addressing the Supreme Court's ruling in 
Valentine v. United States \112\ that executive power to 
extradite must be based in a statute or a treaty, the court 
concluded that the required authorization could be found in 
Public Law 104-106, which, along with the agreement, created 
the constitutionally valid ``congressional-executive 
agreement'' used in this situation.
---------------------------------------------------------------------------
    \110\ Agreement on Surrender of Persons Between the Government of 
the United States and the International Tribunal for the Prosecution of 
Persons Responsible for Genocide and Other Serious Violations of 
International Humanitarian Law Committed in the Territory of Rwanda and 
Rwandan Citizens Responsible for Genocide and Other Such Violations 
Committee in the Territory of Neighboring States, signed January 24, 
1995, entered into force February 14, 1996, TIAS 12601.
    \111\ 184 F. 3d 419 (5th Cir. 1999).
    \112\ 299 U.S. 5 (1936).
---------------------------------------------------------------------------
    From the foregoing review of the practice and case law 
associated with congressional-executive agreements, it would 
seem that the constitutionality of this mode of agreement-
making is well established. Notwithstanding that the text of 
the Constitution confers no explicit authority for the making 
of congressional-executive agreements, such agreements have 
been authorized frequently by Congress over the years on a wide 
variety of subjects. Similarly, courts have been little 
troubled by theoretical considerations and have sustained such 
agreements largely on the basis of the actual practice of the 
political branches of the government and the cumulative weight 
of prior judicial decisions. Where the constitutionality of a 
congressional-executive agreement was directly challenged, the 
commerce clause coupled with the necessary and proper clause 
and the President's foreign affairs power was held to provide 
an adequate constitutional basis for a trade agreement that 
took this form.\113\ Moreover, it appears to be the majority 
view of legal scholars that congressional-executive agreements 
and treaties are wholly interchangeable modes of agreement-
making for the United States, although this proposition has 
been periodically questioned where the ``interchange'' is 
initiated by the President in his discretion rather than by 
prior congressional authorization.\114\
---------------------------------------------------------------------------
    \113\ For a cogent argument that the combined foreign affairs 
powers of the Congress and the President would prove sufficient to 
sustain congressional-executive agreements, see McDougal and Lans, pp. 
217 et seq.
    \114\ For expressions of the majority view, see Henkin 1996, p. 
217; Slonim, p. 449; and Murphy, John, Treaties and International 
Agreements Other Than Treaties: Constitutional Allocation of Power and 
Responsibility Among the President, the House of Representatives, and 
the Senate. University of Kansas Law Review, v. 23, 1975, p. 237. 
Arguably, the case favoring interchangeability is enhanced by the 
Altman, Louis Wolf, Rossi, Made in U.S.A. Foundation, and Ntakirutimana 
cases discussed in the text accompanying notes 88-98 and 105-112, 
supra. Compare, however, Borchard 1944, p. 671, and the several 
contentious memoranda issued by the Legal Adviser, Department of State, 
and the Office of Legislative Counsel, United States, concerning the 
President's characterizations of the four Sinai Agreements of 1975, 
involving the United States, Egypt, and Israel, as ``executive 
agreements.'' Congressional Record, v. 121, 1975, pp. 36718-36731 and 
v. 122, 1976, pp. 3374-3379. Note also the debate described in note 
105, supra.
---------------------------------------------------------------------------

                     agreements pursuant to treaties

     Agreements in this category comprise those which are 
expressly authorized by the text of an existing treaty or whose 
making may be reasonably inferred from the provisions of a 
prior treaty. Numerous agreements pursuant to treaties have 
been concluded by the Executive, particularly of an 
administrative nature, to implement in detail generally worded 
treaty obligations. Early agreements of this type consist of 
instruments accepting the results of boundary surveys mandated 
by a pre-existing treaty, accepting the accession of additional 
parties to a previously concluded treaty, or implementing 
transit rights across foreign territory as envisioned by a 
treaty of earlier date.\115\ Modern examples of agreements 
pursuant to treaties may be found in the many arrangements and 
understandings implementing the North Atlantic Treaty 
Organization (NATO) Treaty.\116\
---------------------------------------------------------------------------
    \115\ See Crandall, pp. 117-119.
    \116\ In 1953 Secretary of State Dulles estimated that some 10,000 
agreements had been concluded under the NATO Treaty. Hearings before a 
Subcommittee of the Senate Judicial Committee on S.J. Res. 1 and S.J. 
Res. 43, 83d Cong., 1st Sess. 1953, p. 877.
---------------------------------------------------------------------------
    Agreements concluded pursuant to existing treaties have 
occasionally provoked controversy when it has been alleged that 
particular agreements either required Senate approval in treaty 
form or were otherwise not within the purview of an existing 
treaty.\117\ While the President's authority to conclude such 
agreements seems well-established, the constitutional doctrine 
underlying his power is seldom detailed by legal commentators 
or by the courts. It has been suggested that sufficient 
authority may be found in the President's duty under Article 
II, Section 3, of the Constitution to ``take care that the laws 
[i.e., treaty law] be faithfully executed.'' \118\ If the 
making of such agreements is indeed sustainable on this ground, 
then the instruments technically would seem more properly 
characterized as Presidential or sole executive agreements in 
view of the reliance upon one of the Executive's independent 
powers under Article II of the Constitution.
---------------------------------------------------------------------------
    \117\ Taft, William H. Our Chief Magistrate and His Powers. 1925, 
pp. 111-112 (modus vivendi of 1904 under the Hay-Varilla Treaty with 
Panama ``attacked vigorously in the Senate as a usurpation of the 
treaty-making power''); Constitution--Analysis and Interpretation, p. 
498 (Senate approval in 1905 of bilateral arbitral treaty with Great 
Britain, when made contingent upon President's subsequent submittal of 
arbitral compromis for Senate approval, deemed a rejection of the 
treaties by President Roosevelt); and Executive Agreements with 
Portugal and Bahrain: Hearings before the Senate Foreign Relations 
Committee on S. 214, 92d Cong., 2d Sess. 11 (1972) (Executive reliance 
upon Article III of NATO Treaty deemed ``farfetched'' as supporting 
authority for 1971 agreement with Portugal under which the United 
States agreed to provide some $435 million in credits and assistance to 
Portugal in exchange for the right to station American forces at Lajes 
Airbase in the Azores).
    \118\ Henkin, pp. 219-220.
---------------------------------------------------------------------------
    On the other hand, an alternate legal basis is suggested by 
Wilson v. Girard,\119\ where the Supreme Court seemed to find 
sufficient authorization in the Senate's consent to the 
underlying treaty. The Court's decision was predicated on the 
following factual chronology. Pursuant to a 1951 bilateral 
security treaty,\120\ Japan and the United States signed an 
administrative agreement \121\ which became effective on the 
same date as the security treaty and which was considered by 
the Senate before consenting to the treaty. The administrative 
agreement provided that once a NATO Status of Forces Agreement 
concerning criminal jurisdiction came into effect, the United 
States and Japan would conclude an agreement with provisions 
corresponding to those of the NATO Arrangements. Accordingly, 
subsequent to the entry into force of the NATO Agreement,\122\ 
the United States and Japan effected a protocol agreement \123\ 
containing provisions at issue in the case at bar. In 
sustaining both the administrative agreement and the protocol 
agreement, the Court stated that:
---------------------------------------------------------------------------
    \119\ 354 U.S. 524 (1957).
    \120\ Security Treaty Between the United States and Japan, Sept. 8, 
1951, 3 U.S.T. 3329, TIAS 2491.
    \121\ Administrative Agreement under the United States-Japan 
Security Treaty, Feb. 28, 1952, 3 U.S.T. 3341, TIAS 2492.
    \122\ Agreement Between the Parties to the North Atlantic Treaty 
Regarding the Status of Their Forces, June 19, 1951, 4 U.S.T. 1792, 
TIAS 2846.
    \123\ Protocol Amending the Administrative Agreement under the 
United States-Japan Security Treaty, Sept. 29, 1953, 4 U.S.T. 1846, 
TIAS 2848.
---------------------------------------------------------------------------
          In the light of the Senate's ratification of the 
        Security Treaty after consideration of the 
        Administrative Agreement, which had already been 
        signed, and its subsequent ratification of the NATO 
        Agreement, with knowledge of the commitment to Japan 
        under Administrative Agreement, we are satisfied that 
        the approval of Article III of the Security Treaty 
        authorized the making of the Administrative Agreement 
        and the subsequent Protocol embodying the NATO 
        Agreement provisions governing jurisdiction to try 
        criminal offenses.\124\
---------------------------------------------------------------------------
    \124\ 354 U.S. at 528-29.
---------------------------------------------------------------------------

                presidential or sole executive agreements

    Agreements concluded exclusively pursuant to the 
President's independent authority under Article II of the 
Constitution may be denominated Presidential or sole executive 
agreements. Unlike congressional-executive agreements or 
agreements pursuant to treaties, Presidential agreements lack 
an underlying legal basis in the form of a statute or treaty.
    Numerous Presidential agreements have been concluded over 
the years on the basis of the President's independent 
constitutional authority. Agreements of this type deal with a 
variety of subjects and reflect varying degrees of formality. 
Many Presidential agreements, of course, pertain to relatively 
minor matters and are the subject of little concern. Other 
agreements, however, have provoked substantial interbranch 
controversy, notably between the Executive and the Senate.
    Some idea of both the modern scope and contentious nature 
of Presidential agreements may be gained by noting that such 
agreements were responsible for the open door policy toward 
China at the beginning of the 20th century,\125\ the effective 
acknowledgment of Japan's political hegemony in the Far East 
pursuant to the Taft-Katsura Agreement of 1905 and the Lansing-
Ishii Agreement of 1917,\126\ American recognition of the 
Soviet Union in the Litvinov Agreement of 1933,\127\ the 
Destroyers-for-Bases Exchange with Great Britain prior to 
American entry into World War II,\128\ the Yalta Agreement of 
1945, a secret portion of which made far-reaching concessions 
to the Soviet Union to gain Russia's entry into the war against 
Japan,\129\ the 1973 Vietnam Peace Agreement,\130\ and, more 
recently, the Iranian Hostage Agreement of 1981.\131\
---------------------------------------------------------------------------
    \125\ The open door policy in China as initiated during the 
administration of President McKinley in the form of notes from 
Secretary of State John Hay to the Governments of France, Germany, 
Great Britain, Italy, Japan, and Russia. The text of the Hay notes may 
be found in Malloy, William. Treaties, Conventions, International Acts, 
Protocols, and Agreements Between the United States of America and 
Other Powers, v. 1, 1910, pp. 244-260 (hereafter cited as Malloy). 
Concerning the significance of these agreements, see McClure, p. 98, 
and Bemis, Samuel Flagg. A Diplomatic History of the United States. 
1965, pp. 486 and 504 (hereafter cited as Bemis).
    \126\ The Taft-Katsura Agreement of 1905 may be found in Dennett, 
Tyler. Roosevelt and the Russo-Japanese War. 1925, pp. 112-114. The 
Lansing-Ishii Agreement of 1917 may be found in Malloy, v. 3, pp. 2720-
2722. Concerning the latter agreement, see Bemis, pp. 690-693.
    \127\ The correspondence establishing the agreement may be found in 
U.S. Department of State, Establishment of Diplomatic Relations with 
the Union of Soviet Socialist Republics, Eastern European Series No. 1 
(1933) [No. 528]. Concerning President Roosevelt's failure to give the 
Senate formal notification of the agreement, see the remarks of Senator 
Vandenberg in Congressional Record, January 11, 1934, pp. 460-461.
    \128\ See the Agreement Respecting Naval and Air Bases (Hull-
Lothian Agreement), United States-Great Britain, Sept. 2, 1940, 54 
Stat. 2405, and the Opinion of Attorney General Robert Jackson 
supporting the constitutionality of the arrangement, 39 Op. Atty. Gen. 
484 (1940). See also Wright, Q. The Transfer of Destroyers to Great 
Britain. American Journal of International Law, v. 34, 1940, p. 680; 
Borchard, E. The Attorney General's Opinion on the Exchange of 
Destroyers for Naval Bases. Id., p. 690; and Bemis, p. 858.
    \129\ For the text of the Yalta Agreement, see 59 Stat. 1823. Seven 
years after the Yalta Conference, the agreement was still being 
denounced in the Senate as ``shameful,'' ``infamous,'' and a usurpation 
of power by the President. Congressional Record, February 7, 1952, p. 
900 (remarks of Senator Ives). See also Bemis, p. 904. Although there 
were statements made by President Roosevelt and Secretary of State 
James Byrnes which seemed to imply that Senate consent to the agreement 
would be necessary, the treaty mode was not utilized. In this 
connection, see Pan, Legal Aspects of the Yalta Agreement. American 
Journal of International Law, v. 46, 1952, p. 40, and Briggs, The 
Leaders' Agreement at Yalta. American Journal of International Law, v. 
40, 1946, p. 380.
    \130\ See the Agreement on Ending the War and Restoring Peace in 
Vietnam, January 27, 1973, 24 U.S.T. 1, TIAS 7542, and the supporting 
case offered by the State Department in Rovine, Arthur. Digest of 
United States Practice in International Law 1973. 1974, p. 188.
    \131\ See the Declarations of the Government of the Democratic and 
Popular Republic of Algeria Concerning Commitments and Settlement of 
Claims by the United States and Iran with Respect to Resolution of the 
Crisis Arising Out of the Detention of 52 United States Nationals in 
Iran, with Undertakings and Escrow Agreement, Jan. 19, 1981, TIAS ____, 
Department of State Bulletin, v. 81, February 1981, p. 1.
---------------------------------------------------------------------------
    As previously indicated, legal authority supporting the 
conclusion of Presidential agreements may be found in the 
various foreign affairs powers of the President under Article 
II of the Constitution. In a given instance, a specific 
agreement may be supportable on the basis of one or more of 
these independent executive powers.
    One possible basis for sole executive agreements seem to 
lie in the President's general ``executive power'' under 
Article II, Section 1, of the Constitution. Early judicial 
recognition of this power in the context of Presidential 
agreements, and perhaps the earliest judicial enforcement of 
this mode of agreement-making as well, was accorded by the 
Supreme Court of the Territory of Washington in Watts v. United 
States.\132\ The agreement at issue was concluded between the 
United States and Great Britain in 1859 and provided for the 
joint occupation of San Juan Island pending a final adjustment 
of the international boundary by the parties.\133\ The court 
stated that ``[t]he power to make and enforce such a temporary 
convention respecting its own territory is a necessary incident 
to every national government, and adheres where the executive 
power is vested.'' \134\
---------------------------------------------------------------------------
    \132\ 1 Wash. Terr. 288 (1870).
    \133\ Joint Occupation of San Juan Island, Exchanges of Notes of 
Oct. 25 and 29 and Nov. 2, 3, 5, 7, and 9, 1859, and Mar. 20 and 23, 
1860, reprinted in Bevans, Charles. Treaties and Other International 
Agreements of the United States of America 1776-1949, v. 12, 1974, p. 
123 (hereafter cited as Bevans, Treaties).
    \134\ 1 Wash. Terr. at 294. As the American correspondence 
establishing the agreement for the joint occupation of the island was 
conducted by military officials, the agreement may owe much for its 
authority to the Commander in Chief Power of the Executive (Article II 
Section 2 Clause 1). The Watts case is further discussed in the text 
accompanying note 160 infra.
---------------------------------------------------------------------------
    The President's executive power was later acknowledged in 
broad terms in United States v. Curtiss-Wright Export 
Corporation \135\ where the U.S. Supreme Court referred to the 
``very delicate, plenary, and exclusive power of the President 
as the sole organ of the federal government in the field of 
international relations.'' \136\ Although no agreement was at 
issue in Curtiss-Wright, the quoted language was subsequently 
applied by the Court in United States v. Belmont \137\ to 
validate the Litvinov Agreement of 1993, supra, wherein the 
parties settled mutually outstanding claims incident to formal 
American recognition of the Soviet Union. Concerning this 
agreement, the Court declared that:
---------------------------------------------------------------------------
    \135\ 299 U.S. 304 (1936).
    \136\ Ibid. at 320.
    \137\ 301 U.S. 324 (1937).
---------------------------------------------------------------------------
          * * * [I]n respect of what was done here, the 
        Executive had authority to speak as the sole organ of 
        the government. The assignment and the agreements in 
        connection therewith did not as in the case of 
        treaties, as that term is used in the treaty-making 
        clause of the Constitution (Art. II, Sec. 2), require 
        the advice and consent of the Senate.\138\
---------------------------------------------------------------------------
    \138\ Ibid. at 330.

    Similarly, in United States v. Pink,\139\ the Court again 
approved the Litvinov Agreement on the ground that ``[p]ower to 
remove such obstacles to full recognition as settlement of 
claims * * * certainly is a modest implied power of the 
President who is the `sole organ of the federal government in 
the field of international relations.' '' \140\ More recently, 
in Dames & Moore v. Regan,\141\ the Court relied upon, inter 
alia, the Pink case to sustain President Carter's suspension of 
claims pending in American courts against Iran as required by 
the Hostage Release Agreement of 1981, supra, and, more 
directly, by Executive order.\142\ In light of Pink, the Court 
indicated that ``prior cases * * * have recognized that the 
President does have some measure of power to enter into 
executive agreements without obtaining the advice and consent 
of the Senate.'' \143\ Moreover, the Court's decision was 
heavily influenced by a finding the general tenor of existing 
statutes reflected Congress' acceptance of a broad scope for 
independent executive action in the area of international 
claims settlement agreements.\144\
---------------------------------------------------------------------------
    \139\ 315 U.S. 203 (1942).
    \140\ Ibid. at 229, citing Curtiss-Wright, 299 U.S. at 320.
    \141\ 453 U.S. 654 (1981).
    \142\ Executive Order No. 12294, 46 Fed. Reg. 14111 (1981).
    \143\ 453 U.S. at 682.
    \144\ The Court found that related statutes, though not authorizing 
the President's action, might be viewed as inviting independent 
Presidential measures in a situation such as the one at issue ``at 
least * * * where there is no contrary indication of legislative intent 
and when, as here, there is a history of congressional acquiescence of 
the sort engaged in by the President,'' namely, claims settlement by 
executive agreement. Ibid. at 677-682. In Barquero v. United States, 18 
F. 3d 1311 (5th Cir. 1994), Dames & Moore criteria were used by a 
Federal Circuit Court of Appeals to find an alternative constitutional 
basis for the President's entry into tax information exchange 
agreements with countries that were not ``beneficiary countries'' under 
the Caribbean Basin Economic Recovery Act. The court primarily held, 
however, that the agreements were authorized under the 1986 Tax Reform 
Act.
---------------------------------------------------------------------------
    A second Article II power potentially available to the 
President for purposes for concluding sole executive agreements 
appears to lie in Article II, Section 2, Clause 1, of the 
Constitution which provides that the President shall be 
``Commander-in-Chief of the Army and Navy.'' Cautious 
acceptance of the President's power to conclude agreements 
pursuant to this power is reflected in dictum of the Supreme 
Court in Tucker v. Alexandroff \145\ where the Court, after 
noting previous instances in which the Executive unilaterally 
had granted permission for foreign troops to enter the United 
States, declared that ``[w]hile no act of Congress authorized 
the Executive Department to permit the introduction of foreign 
troops, the power to give such permission without legislative 
assent was probably assumed to exist from the authority of the 
President as commander in chief of the military and naval 
forces of the United States.'' \146\
---------------------------------------------------------------------------
    \145\ 183 U.S. 424 (1902).
    \146\ Ibid. at 435. Four dissenters felt that such exceptions from 
a nation's territorial jurisdiction must rest on either a treaty or a 
statute, but noted that it was not necessary, in this case, to consider 
the full extent of the President's powers in this regard. Ibid. at 456 
and 459. Wright states, however, that ``in spite of this dissent the 
power has been exercised by the President on many occasions. * * *'' 
Wright, Q. The Control of American Foreign Relations. 1922, p. 242 
(hereafter cited as Wright, Control of Foreign Relations). See also 
Moore, John Bassett, A Digest of International Law, v. II, 1906, p. 
389.
---------------------------------------------------------------------------
    The treaty clause of the Constitution (Article II, Section 
2, Clause 2), in empowering the President to make treaties with 
the consent of the Senate, may itself be viewed as supporting 
authority for some types of sole executive agreements. The 
President's power under this clause, together with his 
constitutional role as sole international negotiator for the 
United States \147\ suggest the existence of ancillary 
authority to make agreements necessary for the conclusion of 
treaties. Intermediate stages of negotiations or temporary 
measures pending conclusion of a treaty may, for example, be 
reflected in protocols or modus vivendi.\148\ Although there 
appear to be no cases explicitly recognizing the treaty clause 
as authority for sole executive agreements, the Court's opinion 
in Belmont seems suggestive in acknowledging that there are 
many international compacts not always requiring Senate consent 
``of which a protocol [and] a modus vivendi are 
illustrations.'' \149\
---------------------------------------------------------------------------
    \147\ The Supreme Court indicated in the Curtiss-Wright case that 
the ``[President] alone negotiates. Into the field of negotiations the 
Senate cannot intrude; and Congress itself is powerless to invade 
it.'': 299 U.S. at 319.
    \148\ Constitution--Analysis and Interpretation, p. 500.
    \149\ 301 U.S. at 330-331.
---------------------------------------------------------------------------
    A fourth power of the President under Article II which is 
relevant to the conclusion of sole executive agreements lies in 
his authority to ``receive Ambassadors and other public 
Ministers'' (Article II, Section 3). To the extent that the 
receive clause is viewed as supporting the President's 
authority to ``recognize'' foreign governments,\150\ it is 
arguable that sole executive agreements may be concluded 
incident to such recognition. Although the Belmont and Pink 
cases appear to sustain the Litvinov Agreement principally on 
the basis of the President's general foreign affairs powers as 
Chief Executive or ``sole organ'' of the government in the 
field of international relations, the Court also seemed to 
emphasize that the agreement accorded American ``recognition'' 
to the Soviet Union. Thus, in Belmont the Court stated that:
---------------------------------------------------------------------------
    \150\ See Goldwater v. Carter, 617 F. 2d 697, 707-708 (D.C. Cir. 
1979), jud. vac. and rem. with directions to dismiss complaint, 444 
U.S. 996 (1979). Professor Henkin observes that ``[r]ecognition is 
indisputably the President's sole responsibility, and for many it is an 
`enumerated' power implied in the President's express authority to 
appoint and receive ambassadors.'' Henkin 1996, p. 220. See also 
Wright, Control of Foreign Relations, p. 133; Mathews, pp. 365-366; and 
McDougal and Lans, pp. 247-248.
---------------------------------------------------------------------------
          We take judicial notice of the fact that coincident 
        with the assignment [of Soviet claims against American 
        nationals to the United States government], the 
        President recognized the Soviet Government, and normal 
        diplomatic relations were established between that 
        government and the government of the United States, 
        followed by an exchange of ambassadors * * * The 
        recognition, establishment of diplomatic relations, the 
        assignment, and agreements with respect thereto, were 
        all parts of one transaction, resulting in an 
        international compact between the two governments. That 
        the negotiations, acceptance of the assignment and 
        agreements and understandings in respect thereof were 
        within the competence of the President may not be 
        doubted * * * [I]n respect of what was done here, the 
        Executive had authority to speak as the sole organ of 
        [the] government.\151\
---------------------------------------------------------------------------
    \151\ 301 U.S. at 330.

    Similarly, in Pink the Court declared that:
          ``What government is to be regarded here as 
        representative of a foreign sovereign state is a 
        political rather than a judicial question, and is to be 
        determined by the political department of the 
        government'' * * * That authority is not limited to a 
        determination of the government to be recognized. It 
        includes the power to determine the policy which is to 
        govern the question of recognition * * * Recognition is 
        not always absolute; it is sometimes conditional * * * 
        Power to remove such obstacles to full recognition as 
        settlement of claims of our nationals * * * Unless such 
        a power exists, the power of recognition might be 
        thwarted or seriously impaired. No such obstacles can 
        be placed in the way of rehabilitation of relations 
        between this country and another nation, unless the 
        historic conception of the powers and responsibilities 
        of the president in the conduct of foreign affairs * * 
        * is to be drastically revised.\152\
---------------------------------------------------------------------------
    \152\ 315 U.S. at 229-230. See also Dole v. Carter, 444 F. Supp. 
1065 (D. Kan. 1977), motion for injunction pending appeal denied, 569 
F. 2d 1108 (10th Cir. 1977), where the district court relied on the 
President's recognition power and his general ``sole organ'' executive 
authority to validate a Presidential agreement transferring Hungarian 
coronation regalia to the Republic of Hungary. On appeal, however, the 
Court of Appeals ``decline[d] to enter into any controversy relating to 
distinctions which may be drawn between executive agreements and 
treaties'' and adjudged the issue a nonjusticiable political question.

    A fifth source of Presidential power under Article II 
possibly supporting the conclusion of sole executive agreements 
is the President's duty to ``take care that the laws be 
faithfully executed'' (Article II, Section 3). Although there 
appear to be no cases holding that the take care clause is 
specific authority for such agreements, legal commentators have 
asserted that the clause sanctions the conclusion of agreements 
in implementation of treaties.\153\ Moreover, it was early 
opined by Attorney General Wirt in 1822 that the President's 
duty under this constitutional provision extends not only to 
the Constitution, statutes, and treaties of the United States 
but also to ``those general laws of nations which govern the 
intercourse between the United States and foreign nations.'' 
\154\ This view appears to have been accepted subsequently by 
the Supreme Court in In re Neagle,\155\ where it was suggested 
in dictum that the President's responsibility under the clause 
includes the enforcement of ``rights, duties, and obligations 
growing out of * * * our international relations * * *'' \156\ 
Accordingly, it has been argued that the clause ``sanctions 
agreements which are necessary to fulfill [non-treaty] 
international obligations of the United States.'' \157\
---------------------------------------------------------------------------
    \153\ See McDougal and Lans, p. 248, and Mathews, p. 367. See also 
Henkin 1996, pp. 219-220.
    \154\ 1 Op. Atty. Gen. 566, 570 (1822).
    \155\ 135 U.S. 1 (1890).
    \156\ Ibid. at 64.
    \157\ McDougal and Lans, p. 248. McDougal and Lans state that the 
``take care'' clause provides an alternatie source of authority for the 
Boxer Indemnity Protocol of 1901 following cessation of the Boxer 
Rebellion in China. Ibid., p. 248, n. 150. The text of the protocol may 
be found in Malloy, Treaties, v. 2, p. 2006. Concerning the use of the 
``take care'' clause as authority for executive implementation of 
international law, Professor Henkin notes that-- * * * Writers have not 
distinguished between (a) authority to carry out the obligations of the 
United States under treaty or customary law (which can plausibly be 
found in the `take care' clause); (b) authority to exercise rights 
reserved to the United States by international law or given it by 
treaty; and (c) authority to compel other states to carry out their 
international obligations to the United States. Henkin 1996, p. 347, n. 
54.
---------------------------------------------------------------------------
    Sole executive agreements validly concluded pursuant to one 
or more of the President's independent powers under Article II 
of the Constitution may be accorded status as Supreme Law of 
the Land for purposes of superseding any conflicting provisions 
of state law. As explained by the Supreme Court in Belmont:
          Plainly, the external powers of the United States are 
        to be exercised without regard to the state laws or 
        policies. The supremacy of a treaty in this respect has 
        been recognized from the beginning * * * And while this 
        rule in respect of treaties is established by the 
        express language of cl. 2, Art. VI, of the 
        Constitution, the same rule would result in the case of 
        all international compacts and agreements from the very 
        fact that complete power over international affairs is 
        in the national government and is not and cannot be 
        subject to any curtailment or interference on the part 
        of the several states.\158\
---------------------------------------------------------------------------
    \158\ 301 U.S. at 331. See also Pink, 315 U.S. at 230-234.

    However, notwithstanding that treaties and Federal statutes 
are treated equally by the Constitution with legal primacy 
accorded the measure which is later in time,\159\ the courts 
have been reluctant to enforce Presidential agreements in the 
face of prior congressional enactments. Judicial uncertainty 
was early evidenced in Watts v. United States, supra, where the 
Supreme Court of the Territory of Washington, after affirming 
on the basis of the President's ``executive power'' the 
validity of an agreement with Great Britain providing for the 
joint occupation of San Juan Island, tentatively enforced the 
agreement against a prior Federal law defining the government 
of the territory. According to the court:
---------------------------------------------------------------------------
    \159\ Whitney v. Robertson, 124 U.S. 190 (1888).
---------------------------------------------------------------------------
          Such conventions are not treaties within the meaning 
        of the Constitution, and, as treaties supreme law of 
        the land, conclusive on the court, but they are 
        provisional arrangements, rendered necessary by 
        national differences involving the faith of the nation 
        and entitled to the respect of the courts. They are not 
        a casting of the national will into the firm and 
        permanent condition of law, and yet in some sort they 
        are for the occasion an expression of the will of the 
        people through their political organ, touching the 
        matters affected; and to avoid unhappy collision 
        between the political and judicial branches of the 
        government, both which are in theory inseparably all 
        one, such an expression to a reasonable limit should be 
        followed by the courts and not opposed, though 
        extending to the temporary restraint or modification of 
        the operation of existing statutes. Just as here, we 
        think, this particular convention respecting San Juan 
        should be allowed to modify for the time being the 
        operation of the organic act of this Territory 
        (Washington) so far forth as to exclude to the extent 
        demanded by the political branch of the government of 
        the United States, in the interest of peace, all 
        territorial interference for the government of that 
        island.\160\
---------------------------------------------------------------------------
    \160\ 1 Wash. Terr. at 294. Elsewhere the court ``presumed'' that 
Congress had been ``fully apprised'' of the situation by the President 
and noted tacit congressional acquiescence for a long term of years. 
Ibid., p. 293.

    Decisions by lower Federal courts of more recent date, 
however, have voided sole executive agreements which were 
incompatible with pre-existing Federal laws. Thus, in United 
States v. Guy W. Capps, Inc.,\161\ a U.S. Circuit Court of 
Appeals refused to enforce a Presidential agreement concerning 
the importation of Canadian potatoes into the United States 
inasmuch as the agreement contravened the requirements of the 
Agricultural Act of 1948.\162\ According to the court, ``* * * 
whatever the power of the executive with respect to making 
executive trade agreements regulating foreign commerce in the 
absence of action by Congress, it is clear that the executive 
may not through entering into such an agreement avoid complying 
with a regulation prescribed by Congress.'' \163\ The court's 
rationale for this conclusion was grounded upon Congress' 
expressly delegated authority under Article I, Section 8, 
Clause 3, of the Constitution to regulate foreign commerce (as 
reflected in the statute in the present case) and upon the 
following statement from Justice Jackson's frequently quoted 
concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer: 
\164\
---------------------------------------------------------------------------
    \161\ 204 F. 2d 655 (4th Cir. 1953), aff'd on other grounds, 348 
U.S. 296 (1955).
    \162\ Agricultural Act of 1948, Sec. 3, 62 Stat. 1247, 1248-1250.
    \163\ 204 F. 2d at 659-660.
    \164\ 343 U.S. 579 (1952).
---------------------------------------------------------------------------
          When the President takes measures incompatible with 
        the expressed or implied will of Congress, his power is 
        at its ebb, for then he can rely only upon his own 
        constitutional powers minus any constitutional powers 
        of Congress over the matter. Courts can sustain 
        exclusive Presidential control in such a case only by 
        disabling the Congress from acting upon the subject. 
        Presidential claim to a power at once so conclusive and 
        preclusive must be scrutinized with caution, for what 
        is at stake is the equilibrium established by our 
        constitutional system.\165\
---------------------------------------------------------------------------
    \165\ Ibid. at 659, quoting Justice Jackson's concurring opinion in 
Youngstown, 343 U.S. at 637-638.

    Similar holdings have occurred in subsequent cases on the 
authority of Guy Capps. In Seery v. United States,\166\ for 
example, the U.S. Court of Claims denied enforcement of a 
Presidential agreement settling post-World War II claims with 
Austria \167\ in the face of prior Federal law authorizing suit 
against the United States on constitutional claims.\168\ The 
court declared that:
---------------------------------------------------------------------------
    \166\ 127 F. Supp. 601 (Ct. Cl. 1955).
    \167\ Agreement Respecting the Settlement of Certain War Accounts 
and Claims, United States-Austria, June 21, 1947, 61 Stat. 4168.
    \168\ 28 U.S.C. Sec. 1491.
---------------------------------------------------------------------------
          * * * It would indeed be incongruous if the Executive 
        Department alone, without even the limited 
        participation by Congress which is present when a 
        treaty is ratified, could not only nullify the Act of 
        Congress consenting to suit on Constitutional claims, 
        but, by nullifying that Act of Congress, destroy the 
        constitutional right of a citizen. In United States v. 
        Guy W. Capps * * * the court held that an executive 
        agreement which conflicted with an Act of Congress was 
        invalid.\169\
---------------------------------------------------------------------------
    \169\ 127 F. Supp. at 607.

    Reference may also be made to Swearingen v. United States 
\170\ where a Federal District Court treated the Agreement in 
Implementation of Article III of the Panama Canal Treaty of 
1977 \171\ as a sole executive agreement, and, as such, void 
for purposes of conferring an income tax exemption on American 
employees of the Panama Canal Commission in derogation of 
Section 61(a) of the Internal Revenue Code.\172\ The rule of 
the Guy Capps case is also reflected in the Department of 
State's Circular 175 procedure governing the making of 
international agreements,\173\ as well as in the American Law 
Institute's current Restatement (Third) of the Foreign 
Relations Law of the United States.\174\
---------------------------------------------------------------------------
    \170\ 565 F. Supp. 1019 (D. Colo. 1983).
    \171\ Agreement in Implementation of Article III of the Panama 
Canal Treaty, with Annexes, Agreed Minute and Related Notes, signed 
Sept. 7, 1977, 33 U.S.T. 141, TIAS 10031.
    \172\ 26 U.S.C. Sec. 61(a). Compare Corliss v. United States, 567 
F. Supp. 162 (1983), holding, on the basis of the legislative history 
of the agreement in the U.S. Senate, that the agreement was not 
intended to exempt American employees from Federal income tax 
liability.
    \173\ 11 For. Aff. Man. Sec. 721.2b(3).
    \174\ Rest. 3d, Sec. 115, Reporters' Note 5.
---------------------------------------------------------------------------
    Notwithstanding that the rule of the Guy Capps case appears 
to enjoy general acceptance, contrary arguments have been 
advanced by other authorities, including the just cited 
Restatement (Third).\175\ The latter thus states that:
---------------------------------------------------------------------------
    \175\ Ibid.
---------------------------------------------------------------------------
          * * * it has been argued that a sole executive 
        agreement within the President's constitutional 
        authority is federal law, and United States 
        jurisprudence has not known federal law of different 
        constitutional status. ``All Constitutional acts of 
        power, whether in the executive or in the judicial 
        department, have as much legal validity and obligation 
        as if they proceeded from the legislature.'' The 
        Federalist No. 64 (Jay), cited in United States v. 
        Pink, supra, 315 U.S. at 230 * * * See Henkin, Foreign 
        Affairs and the Constitution 186, 432-33 (1972). Of 
        course, even if a sole executive agreement were held to 
        supersede a statute, Congress could reenact the statute 
        and thereby supersede the intervening executive 
        agreement as domestic law.\176\
---------------------------------------------------------------------------
    \176\ Ibid.

    The precedential effect of the Guy Capps rule may also be 
somewhat eroded by judicial dicta suggesting that the circuit 
court's opinion in the case was ``neutralized'' by the Supreme 
Court's affirmance on other grounds \177\ and that the question 
as to the effect of a Presidential agreement upon a prior 
conflicting act of Congress has ``apparently not yet been 
completely settled.'' \178\ Moreover, in the two cases which 
have specifically adhered to the Guy Capps rule--Seery and 
Swearingen--the courts, respectively, were either strongly 
influenced by Bill of Rights considerations or failed to 
consider the possibility that the agreement in issue may have 
effectively received the sanction of the Senate as an agreement 
pursuant to an existing treaty. It appears, therefore, that the 
law on this point may yet be in the course of further 
development.
---------------------------------------------------------------------------
    \177\ South Puerto Rico Sugar Co. Trading Corp. v. United States, 
334 F. 2d 622, 634, n. 16 (Ct. Cl. 1964).
    \178\ American Bitumils & Asphalt Co. v. United States, 146 F. 
Supp. 703, 708 (Ct. Cl. 1956), citing both Guy Caps and Seery.


     V. NEGOTIATION AND CONCLUSION OF INTERNATIONAL AGREEMENTS \1\
---------------------------------------------------------------------------

    \1\ Prepared by Marjorie Ann Browne, Specialist in International 
Relations.
---------------------------------------------------------------------------
                              ----------                              

    Treatymaking begins with the negotiation and conclusion or 
signing of an agreement and ends with its ratification or 
acceptance as binding by the parties and its entry into force. 
This chapter examines the first stage, negotiation and 
conclusion.

                             A. Negotiation

    The negotiation of a treaty is the process by which the 
representatives of governments agree on the substance, terms, 
and wording of an international agreement. The word 
``negotiation'' has been defined as ``the exchange and 
discussion of proposals by the representatives of the parties 
concerned with a view to reaching a mutually acceptable 
agreement.'' \2\
---------------------------------------------------------------------------
    \2\ U.S. Department of State. Digest of International Law. Prepared 
by and under the direction of Marjorie M. Whiteman, Assistant Legal 
Adviser, Department of State. Vol. 14, p. 19. (hereafter cited as 14 
Whiteman).
---------------------------------------------------------------------------
    Nations negotiate and conclude treaties through individuals 
who have been issued ``full powers'' to represent their states 
for that purpose or are otherwise clearly intended to represent 
their states. Under international law, heads of state, heads of 
government, or foreign ministers are accepted as representing 
their states without a ``full powers'' document. Similarly, 
chiefs of diplomatic missions are considered representatives 
for purposes of negotiating a treaty with the state to which 
they are assigned, as are accredited representatives to 
international organizations and conferences for purposes of 
adopting a treaty text within those groups.\3\ U.S. practice is 
that a ``full power'' is not usually issued for conclusion of 
an international agreement other than a treaty.\4\
---------------------------------------------------------------------------
    \3\ Vienna Convention, Art. 7.
    \4\ Circular 175 Procedure, sec. 730.3. Reprinted in Appendix 4 of 
this volume.
---------------------------------------------------------------------------
    In the United States, the actual negotiation of treaties 
and other international agreements is widely recognized as 
being within the power of the President. One authority calls 
negotiation ``a Presidential monopoly.'' \5\ Others argue that 
the Senate's advice and consent function applies before and 
during the negotiations as well as prior to ratification.\6\
---------------------------------------------------------------------------
    \5\ U.S. Library of Congress. Congressional Research Service. The 
Constitution of the United States of America: Analysis and 
Interpretation. Annotation of Cases Decided by the Supreme Court of the 
United States to June 29, 1992. Washington, GPO, 1996, p. 470. 
(hereafter cited as Annotated Constitution).
    \6\ Webb, Richard E. Treaty-Making and the President's Obligation 
to Seek the Advice and Consent of the Senate with Special Reference to 
the Vietnam Peace Negotiations. Ohio State Law Journal, v. 31, summer 
1970, pp. 450-515.
---------------------------------------------------------------------------
    Article II, Section 2 of the Constitution provides that the 
President ``shall have Power, by and with the Advice and 
Consent of the Senate, to make Treaties, provided two-thirds of 
the Senators present concur.'' The President's control of 
negotiations also springs from three other provisions of the 
Constitution which result in his being the official channel of 
communications with other nations. Article II, Section 2 states 
that the President ``shall nominate, and by and with the advice 
and consent of the Senate, shall appoint ambassadors, other 
public ministers and consuls * * *.'' Section 3 of Article II 
provides that the President ``shall receive ambassadors and 
other public ministers.'' This power has made the President 
``the sole mouthpiece of the nation in its dealings with other 
nations.'' \7\ Finally, Article II, Section 1, provides: ``The 
executive power shall be vested in a President * * *.''
---------------------------------------------------------------------------
    \7\ Annotated Constitution, p. 541.
---------------------------------------------------------------------------
    The President or his representative begins the process of 
negotiations by inviting representatives of another nation, or 
responding to another country's invitation, to discuss 
proposals for an agreement. The President nominates and, with 
Senate advice and consent, appoints a person, usually an 
ambassador, minister, or foreign service officer, or delegation 
to represent the United States. He issues the negotiator ``full 
powers'' (a document certifying that the individual represents 
the United States) and provides instructions on the objectives 
and scope of the negotiations. He determines whether and when 
the text is signed by the United States.
    Nonetheless, during the negotiation phase Congress 
frequently plays a part. The Department of State procedures for 
negotiating treaties include timely and appropriate 
consultation with congressional leaders and committees as an 
objective. The procedures provide for consultations on the 
intention to negotiate significant new agreements, the form of 
the agreement, legislation that might be necessary, and other 
developments concerning treaties.\8\
---------------------------------------------------------------------------
    \8\ Circular 175 Procedures, Sections 720.2, 721.4, and 723.1e. The 
text of Circular 175 procedures is contained in Appendix 4 of this 
volume. See also discussion in Chapter X.
---------------------------------------------------------------------------
    If the terms ``negotiation and conclusion'' of a treaty are 
used in a broader sense to include all the aspects of 
``making'' a treaty prior to the decision on ratification, 
clearly there are other aspects of this process in which the 
Senate or the entire Congress may participate. These include 
proposing a subject for a treaty to the President, advising and 
consenting on the appointment of an ambassador or minister to 
conduct the negotiations, and participating in the negotiations 
as observers or advisers to U.S. delegations. Some contend 
Senate attachment of conditions to its advice and consent 
constitutes an additional stage in the negotiating process.

                               logan act

    One statute passed by Congress in 1799, the Logan Act, 
appears to have strengthened executive branch control over 
negotiations by prohibiting unauthorized citizens from 
initiating or carrying out correspondence or intercourse with 
foreign governments on disputes with the United States. The 
Logan Act was enacted into positive law in the U.S. Code on 
June 25, 1948, and states:
    Private correspondence with foreign governments
          Any citizen of the United States, wherever he may be, 
        who, without authority of the United States, directly 
        or indirectly commences or carries on any 
        correspondence or intercourse with any foreign 
        government or any officer or agent thereof, with intent 
        to influence the measures or conduct of any foreign 
        government or of an officer or agent thereof, in 
        relation to any disputes or controversies with the 
        United States, or to defeat the measures of the United 
        States, shall be fined not more than $5,000 or 
        imprisoned not more than three years or both.
          This section shall not abridge the right of a citizen 
        to apply, himself or his agent, to any foreign 
        government or the agents thereof for redress of any 
        injury which he may have sustained from such government 
        or any of its agents or subjects.\9\
---------------------------------------------------------------------------
    \9\ 18 U.S.C. 953. June 25, 1948, c.645, 62 Stat. 744. Originally 
enacted on January 30, 1799 as 1 Stat. 613.

    The law was enacted after a private citizen, Dr. George 
Logan, traveled to France and attempted to end the plundering 
of American merchant ships authorized by the French director of 
the revolutionary government. Although there have been no known 
prosecutions under the Act and only one indictment, there have 
been several judicial and congressional references to it, 
indicating, in the words of one analyst, that the Act ``has not 
been forgotten and that it is at least a political weapon 
against any one who without authority interferes in the foreign 
relations of the United States.'' \10\
---------------------------------------------------------------------------
    \10\ Seitzenger, Michael. The Logan Act. Congressional Research 
Service Report No. 78-212 A.
---------------------------------------------------------------------------
    Questions concerning the Logan Act were raised concerning 
activities of a number of individuals including Henry Ford, 
Senator Warren Harding, President William Howard Taft, after he 
was out of office, Harold Stassen, Senator Joseph McCarthy, 
Cyrus Eaton, Jane Fonda, the Reverend Jesse Jackson, and 
Speaker of the House Jim Wright.\11\
---------------------------------------------------------------------------
    \11\ Simpson, Curtis C., III. The Logan Act of 1799: May It Rest In 
Peace. California Western International Law Journal, v. 10, spring 
1980, pp. 365-385. Remarks of Representative Newt Gingrich. Role of 
Executive and Legislative Branches in Foreign Policy. Congressional 
Record, November 17, 1987, pp. H10109-H10115 (daily ed.).
---------------------------------------------------------------------------
    After the journey of former Attorney General Ramsey Clark 
to Iran in connection with the Americans held hostage there, 
the Senate passed an amendment supporting ``the enforcement of 
any applicable statutes not excluding the Logan Act or any 
other Act that may be violated in the course of private 
negotiating initiatives.'' \12\ However, action was not 
completed on the Department of Justice authorization bill to 
which the amendment was attached.
---------------------------------------------------------------------------
    \12\ Debate on S. 2377, Congressional Record, June 18, 1980, p. 
S7371 (daily ed.).
---------------------------------------------------------------------------
    One issue is whether Members of Congress fit in the 
category of private citizens, and whether their communication 
with foreign governments would be ``unauthorized by the United 
States.'' These were addressed by the Department of State in 
1975. Assistant Secretary of State for Congressional Relations 
Robert J. McCloskey wrote that certain contacts of Senators 
John Sparkman and George McGovern with Cuban officials were not 
inconsistent with the Logan Act. The opinion stated:
          The clear intent of [the Logan Act] is to prohibit 
        unauthorized persons from intervening in disputes 
        between the United States and foreign governments. 
        Nothing in Section 953, however, would appear to 
        restrict members of the Congress from engaging in 
        discussions with foreign officials in pursuance of 
        their legislative duties under the Constitution. In the 
        case of Senators McGovern and Sparkman the executive 
        branch, although it did not in any way encourage the 
        Senators to go to Cuba, was fully informed of the 
        nature and purpose of their visit, and had validated 
        their passports for travel to that country.
          Senator McGovern's report of his discussions with 
        Cuban officials stated: ``I made it clear that I had no 
        authority to negotiate on behalf of the United States--
        that I had come to listen and learn * * *'' Senator 
        Sparkman's contacts with Cuban officials were conducted 
        on a similar basis. The specific issues raised by the 
        Senators (e.g., the Southern Airways case; Luis Tiant's 
        desire to have his parents visit the United States) 
        would, in any event, appear to fall within the second 
        paragraph of Section 953.
          Accordingly, the Department does not consider the 
        activities of Senators Sparkman and McGovern to be 
        inconsistent with the stipulations of Section 953.\13\
---------------------------------------------------------------------------
    \13\ Digest of United States Practice in International Law 1975, p. 
750.

    The Logan Act raises constitutional issues as well, 
especially regarding freedom of speech and the right to 
travel.\14\
---------------------------------------------------------------------------
    \14\ Vagts, Alfred. Paper Tiger or Sleeping Giant. American Journal 
of International Law, v. 60, 1966, p. 268. Kearney, Kevin M. Private 
Citizens in Foreign Affairs: A Constitutional Analysis. Emory Law 
Journal, v. 36, winter 1987, pp. 285-355.
---------------------------------------------------------------------------
    Some Members of Congress have made efforts to repeal the 
Logan Act. Senator Edward Kennedy attempted to delete the 
measure from the 1978 bill to amend the U.S. criminal code (S. 
1437, 95th Cong.) but agreed to leave it in to prevent 
prolonged debate.\15\ Representative Anthony Beilenson 
introduced H.R. 7269 to repeal the Act on May 6, 1980, stating 
that there were fundamental constitutional problems with the 
Act and that its main use had been to ``allow periodic calls 
for prosecution motivated by opposition to the cause being 
expressed instead of actual concern about treason.'' \16\
---------------------------------------------------------------------------
    \15\ Congressional Record, January 30, 1978, p. 767 (daily ed.).
    \16\ Congressional Record, v. 126, part 8, May 6, 1980, pp. 10112-
10113.
---------------------------------------------------------------------------
    In regard to the negotiation of treaties, under 
international law any treaties concluded by persons who have 
not been issued full powers from their governments, outside of 
specific officials such as the head of state, are considered 
without legal effect unless afterward confirmed by the 
state.\17\
---------------------------------------------------------------------------
    \17\ Vienna Convention. Article 8.
---------------------------------------------------------------------------

           B. Initiative for an Agreement; Setting Objectives

    Within the United States, the proposal that the United 
States enter negotiations for an international agreement 
usually springs from the executive branch in the course of its 
diplomatic activities with other nations or in its 
administration of U.S. foreign policy. On occasion, however, 
Congress or its committees, subcommittees, or individual 
Members have formally or informally proposed that the President 
undertake negotiations or diplomatic actions aimed at achieving 
international agreement on a certain course of action. 
Proposals have been embodied both in sense of the Congress 
resolutions and in binding legislation.
    One of the best known examples of a congressional proposal 
is the Vandenberg Resolution that ultimately led to 
negotiations culminating in the North Atlantic Treaty. Adopted 
by the Senate on June 11, 1948, it expressed the sense of the 
Senate ``that this Government, by Constitutional processes, 
should particularly pursue'' certain objectives including:
          * * * Progressive development of regional and other 
        collective arrangements for individual and collective 
        self-defense in accordance with the purposes, 
        principles, and provisions of the Charter.
          * * * Association of the United States, by 
        constitutional process, with such regional and other 
        collective arrangements as are based on continuous and 
        effective self-help and mutual aid, and as affect its 
        national security.\18\
---------------------------------------------------------------------------
    \18\ S. Res. 239, 80th Cong., 2d Sess.

    The Senate Foreign Relations Committee which had, in close 
cooperation with the Department of State, worked out the 
resolution, later reported: ``Pursuant to this advice the 
President in July authorized the Secretary of State to enter 
into exploratory conversations on the security of the North 
Atlantic area. * * *'' \19\ The North Atlantic Treaty was 
signed on April 4, 1949, and received the advice and consent of 
the Senate.
---------------------------------------------------------------------------
    \19\ S. Exec. Rept. 8, 81st Cong., 1st Sess.
---------------------------------------------------------------------------
    The Monroney Resolution suggesting the International 
Development Association is also often cited as a congressional 
initiative. On July 23, 1958, the Senate adopted a resolution 
introduced by Senator A.S. Mike Monroney suggesting that the 
administration study the possibility of proposing to other 
governments the establishment of an international development 
association as a soft-loan affiliate of the World Bank.\20\ The 
articles of agreement for this international financial 
institution were negotiated and submitted to Congress with a 
request for legislation to authorize U.S. participation. 
Congress authorized the participation on June 30, 1960.\21\
---------------------------------------------------------------------------
    \20\ S. Res. 264, 85th Cong., 2d Sess.
    \21\ Public Law 86-565.
---------------------------------------------------------------------------
    The Seabed Arms Control Treaty, prohibiting the emplacement 
of nuclear weapons on the seabed and ocean floor, was in part a 
congressional initiative. Senator Claiborne Pell introduced 
resolutions in 1967 expressing the Senate's concern for 
reasonable rules governing the extraterritorial marine 
environment, and the need to negotiate a treaty to prohibit 
stationing nuclear weapons on the seabed.\22\ The treaty was 
signed in 1971, and the Senate approved it, by a vote of 83-0 
on February 15, 1972.
---------------------------------------------------------------------------
    \22\ S. Res. 172 and S. Res. 186, 90th Cong.
---------------------------------------------------------------------------
    Similarly, Congress helped initiate the Environmental 
Modification Convention. In July 1972, the U.S. Government 
renounced the use of climate modification techniques for 
hostile purposes, and beginning in 1972 both the House and 
Senate held hearings on a resolution to prohibit the use of any 
environmental or geophysical modification activity as a weapon 
of war. Senate Resolution 71, introduced by Senator Pell and 
passed July 11, 1973, stated the sense of the Senate that the 
U.S. Government ``should seek'' the agreement of other 
governments to a treaty along the following lines'' and 
suggested wording of a treaty. A Convention on the Prohibition 
of Military or Other Hostile Use of Environmental Modification 
Techniques was concluded on May 18, 1977, and entered into 
force for the United States January 17, 1980.
    Other congressional resolutions have also proposed 
negotiations. For example, on August 3, 1977, Congress stated 
the sense of the Congress ``that the President should initiate 
a major diplomatic initiative toward the creation of an 
international system of nationally held grain reserves which 
provides for supply assurance to consumers and income security 
to producers.'' \23\ On May 25, 1983, S. Res. 95 expressed the 
sense of the Senate that the President should initiate 
negotiations on a new long-term agreement on agricultural trade 
with the Soviet Union.
---------------------------------------------------------------------------
    \23\ Sec. 510, Public Law 95-105.
---------------------------------------------------------------------------
    On occasion the resolutions proposing negotiations have 
contained a reporting request or requirement. S. Res. 95 
mentioned above stated the sense of the Senate that the 
President should report to Congress as soon as practicable on 
the potential impact of the agreement on the U.S. economy. S. 
Res. 133, adopted April 18, 1975, called for the President to 
report within 30 days on efforts to promote a settlement in 
Vietnam.\24\
---------------------------------------------------------------------------
    \24\ S. Rept. 94-39.
---------------------------------------------------------------------------
    Congress also utilized binding legislation to authorize, 
call for, or suggest negotiations for international agreements. 
In the Trade Agreements Act of 1974, Congress urged the 
President to utilize the authority granted in order to 
negotiate trade agreements with other countries that would 
reduce and eliminate nontariff barriers. The Act specified 
negotiating objectives for the United States.\25\
---------------------------------------------------------------------------
    \25\ Secs. 102, 103, 104, and 106 of the Trade Act of 1974, Public 
Law 93-618, approved January 3, 1975.
---------------------------------------------------------------------------
    Section 36 of the Foreign Assistance Act of 1973 called for 
the President or his delegate to seek, as soon as possible, a 
revision of the Social Progress Trust Fund Agreement, between 
the United States and the Inter-American Development Bank, 
specifying revisions to be made. Section 36(e) stated, ``Not 
later than January 1, the President shall report to Congress on 
his action taken pursuant to this section.\26\ Section 39 of 
the same Act stated the sense of Congress that the United 
States should participate in efforts to alleviate world food 
shortages and that ``To this end, the President shall--'' among 
other things request member nations of the General Agreement on 
Tariffs and Trade to explore certain questions, consult and 
cooperate with appropriate international agencies in certain 
purposes, and report his findings and recommendations on the 
implementation of the section by December 31, 1974.
---------------------------------------------------------------------------
    \26\ Public Law 93-189.
---------------------------------------------------------------------------
    Legislation passed in l981 required the Secretary of the 
Treasury to submit a report to both Houses of Congress by 
December 15, 1981, on the status of negotiations within the 
Organization for Economic Cooperation and Development on 
arrangements involving official export financing including an 
assessment of the progress and the prospects for a successful 
conclusion.\27\
---------------------------------------------------------------------------
    \27\ Sec. 381(a) of Public Law 97-35, approved August 13, 1981.
---------------------------------------------------------------------------
    The Comprehensive Anti-Apartheid Act of 1986, passed over 
the veto of President Reagan, called for negotiations to reach 
international cooperative agreements with the other 
industrialized democracies on measures to bring about the 
complete dismantling of apartheid, and a report from the 
President within 180 days describing efforts to negotiate 
multilateral measures.\28\ The measure also provided that 
agreements submitted to Congress under the provision should 
enter into force only if the President notified Congress 30 
days in advance and Congress enacted a joint resolution of 
approval within 30 days under expedited procedures.
---------------------------------------------------------------------------
    \28\ Sec. 401(b)(1) of Public Law 99-440 (22 U.S.C. 5081), approved 
October 2, 1986, as amended by Public Law 99-631, approved November 7, 
1986.
---------------------------------------------------------------------------
    President Bush objected to some directives concerning 
negotiation of agreements in signing both Foreign Relations 
Authorization Acts enacted during his administration.\29\ As an 
example, section 102 of Public Law 101-246 prohibited the use 
of funds for any U.S. delegation to any meeting within the 
framework of the Conference on Security and Cooperation in 
Europe (CSCE), unless the U.S. delegation included individuals 
representing the Commission on Security and Cooperation in 
Europe. The commission was a legislative-executive body which 
had been established earlier by Congress. President Bush said 
the section ``impermissibly intrudes upon my constitutional 
authority to conduct our foreign relations and to appoint our 
Nation's envoys.'' \30\ Although President Bush stated that he 
would construe the measure as expressing the sense of the 
Congress but not imposing a binding legal obligation, 
representatives of the commission have been regularly included 
in delegations to meetings of what is now the Organization on 
Security and Cooperation in Europe.
---------------------------------------------------------------------------
    \29\ Foreign Relations Authorization Act, Fiscal Years 1990 and 
1991, Public Law 101-246, approved February 16, 1990; Foreign Relations 
Authorization Act, Fiscal Years 1992 and 1993, Public Law 102-138, 
approved October 28, 1991.
    \30\ Statement on Signing the Foreign Relations Authorization Act, 
Fiscal Years 1990 and 1991, February 16, 1990. Weekly Compilation of 
Presidential Documents, February 19, 1990, vol. 26.
---------------------------------------------------------------------------

                 C. Advice and Consent on Appointments

    Most treaties and international agreements are negotiated 
by ambassadors or foreign service officers already assigned to 
particular countries or functions.\31\
---------------------------------------------------------------------------
    \31\ This section is based in part on The Senate Role in Foreign 
Affairs Appointments. U.S. Congress. Senate. Committee on Foreign 
Relations. Committee Print. 97th Cong., 2d Sess. Revised July 1982. 119 
pp.
---------------------------------------------------------------------------
    Nevertheless, the Senate sometimes has an exclusive 
opportunity to advise on treaty negotiations at the outset, 
through the constitutional requirement that it advise and 
consent to appointments of ``ambassadors, other public 
ministers and consuls.'' \32\
---------------------------------------------------------------------------
    \32\ Constitution, Article II, Section 2, Clause 2.
---------------------------------------------------------------------------
    The requirement for Senate confirmation appears to have 
been a basic part of the plan to divide the foreign relations 
powers between Congress and the President, with a special role 
for the Senate in the making of treaties. The Constitution 
divides the power relating to making treaties and appointing 
ambassadors in essentially the same manner, although it 
requires a two-thirds majority only for treaties.
    At the time of the writing of the Constitution, there was 
reason to distribute the power to appoint ambassadors and 
ministers in the same fashion as the power to make treaties. 
Treaties were made by ambassadors with full powers from the 
sovereign, usually a king, who issued instructions relating to 
the treaty. If the ambassador stayed within his instructions, 
it was considered obligatory for the sovereign to ratify the 
treaty his emissary concluded.
    Under the doctrine of obligatory ratification, the only way 
the Senate could have a meaningful role in treatymaking was to 
participate during the negotiating stage or during the 
proposing stage when the instructions to the plenipotentiaries 
were being drawn up. Gradually, the Senate practice of 
approving treaties with reservations, the French Revolution, 
and moves toward democratic control in other countries, brought 
about a change in concept and ratification of a treaty came to 
be recognized as discretionary rather than obligatory.\33\
---------------------------------------------------------------------------
    \33\ Jones, J. Mervyn. Full Powers and Ratification, A Study in the 
Development of Treaty-Making Procedure. Cambridge University Press, 
1946, pp. 1-20.
---------------------------------------------------------------------------
    The Framers of the Constitution took into account the link 
between appointments and treaties. In discussing a proposal 
that ``no treaty shall be binding on the United States which is 
not ratified by a law'' and thus would have required the 
consent of the entire Congress, one delegate to the 
Constitutional Convention, according to Madison's notes, 
``thought there was something of solecism in saying that the 
acts of a Minister with plenipotentiary powers from one body 
should depend for ratification on another body.'' \34\ Another 
delegate, according to McHenry's notes for August 23, 1787, 
objected to requiring ratification by a law because ``a 
minister could not then be instructed by the Senate who were to 
appoint him, or if instructed there could be no certainty that 
the House of Representatives would agree to confirm what he 
might agree to under these instructions.\35\
---------------------------------------------------------------------------
    \34\ Madison's notes, p. 13.
    \35\ Farrand, Max. The Records of the Federal Convention of 1787. 
New Haven, Yale University Press, vol. II, p. 395.
---------------------------------------------------------------------------
    Early practice under the Constitution also indicates that 
the Framers expected that the Senate's confirmation of 
appointments of ambassadors and ministers would give the Senate 
a significant role in making treaties. Often nominations were 
submitted along with a description of the treaty the nominee 
was to seek. To illustrate, on January 11, 1792, President 
Washington nominated William Carmichael, the charge d'affaires 
at Madrid, and William Short, then charge d'affaires at Paris, 
to be commissioners plenipotentiary for negotiating a treaty 
with Spain concerning the navigation of the Mississippi, and 
they were confirmed by the Senate on January 24, 1792. In 
March, the President sent a memo to the Senate proposing to 
extend the negotiations to the subject of commerce, setting 
forth the instructions that would be given to the 
commissioners, and asking if the Senate would ``advise and 
consent to the extension of the powers of the commissioners, as 
proposed, and to the ratification of a treaty which shall 
conform to those instructions, should they enter into such a 
one.'' On March 16, 1792, the Senate passed a resolution giving 
its advice and consent to the extension of powers and stating 
that ``they will advise and consent to the ratification of such 
treaty as the said commissioners shall enter into with the 
Court of Spain in conformity to those instructions.'' \36\
---------------------------------------------------------------------------
    \36\ U.S. Congress. Senate. Executive Journal, vol. I, 1792, p. 
115.
---------------------------------------------------------------------------
    The practice of submitting the instructions for 
negotiations along with the nominations did not continue long. 
In the case of the nomination of John Jay to conclude a treaty 
with Great Britain in 1794, the Senate rejected a motion that 
the President be requested to inform the Senate of ``the whole 
business with which the provided envoy is to be charged.'' \37\ 
Nevertheless, the debate on the nomination indicated that the 
Senate ``passed not only upon the choice of the envoy but also 
upon the expediency of the mission itself.'' \38\
---------------------------------------------------------------------------
    \37\ U.S. Congress. Senate. Executive Journal, vol. II, 1809, p. 
113.
    \38\ Hayden, Joseph Ralston. The Senate and Treaties, 1789-1817. 
New York, Macmillan, 1920, p. 70.
---------------------------------------------------------------------------
    In recent years the Senate or the Senate Foreign Relations 
Committee has on occasion used nominations as a vehicle for 
discussion of treaty negotiations. When Paul H. Nitze was 
nominated as ambassador while serving as the head of the U.S. 
Delegation to the Intermediate Range Nuclear Forces 
Negotiations, the committee held both a closed and open session 
with him. Ambassador Nitze had been in the post for 6 months 
with the personal rank of ambassador.\39\ Chairman of the 
Senate Foreign Relations Committee Charles Percy noted that the 
open hearing provided an opportunity to review the issues that 
involve arms control. In the nomination of Sol M. Linowitz for 
the rank of ambassador as personal representative of the 
President to the West Bank and Gaza Strip Autonomy 
Negotiations, the committee hearing covered problems relating 
to the Middle East and Mr. Linowitz's status as a ``special 
Government employee'' receiving no compensation.\40\
---------------------------------------------------------------------------
    \39\ U.S. Senate. Committee on Foreign Relations. Hearing on 
Nomination of Paul H. Nitze, March 24, 1982, 16 pp.
    \40\ U.S. Senate. Committee on Foreign Relations. Nomination of 
Sol. M. Linowitz. Exec. Rept. 96-26, 38 pp.
---------------------------------------------------------------------------

                    unconfirmed presidential agents

    A continuing problem has been the appointment or use of 
persons not confirmed by the Senate to negotiate international 
agreements. In such cases, the Senate does not have an 
opportunity to vote on the appointment or to advise on the 
mission for which he is appointed. The negotiator remains a 
personal agent of the President. Similarly, the Assistant to 
the President for National Security Affairs, also called the 
National Security Adviser, is not confirmed by the Senate, but 
on occasion conducts negotiations.
    The subject has been controversial through most of American 
history. For example, in 1888, a fisheries treaty with Great 
Britain was criticized in the Senate Foreign Relations 
Committee report and in Senate debate on the grounds that the 
negotiators had not been appointed by and with the consent of 
the Senate. Proponents of the treaty countered with a list 
showing that of the persons conducting negotiations for the 
United States since 1789, 438 had been appointed without Senate 
confirmation and only 35 had been confirmed.\41\
---------------------------------------------------------------------------
    \41\ Holt, W. Stull. Treaties Defeated by the Senate. Gloucester, 
Mass., Peter Smith, 1964, p. 145.
---------------------------------------------------------------------------
    One authority has attributed the initiation of the practice 
of appointing special, unconfirmed agents for negotiation of 
specific treaties to the President's embarrassment over the 
Senate refusal in 1813 to approve the nomination of Albert 
Gallatin, Secretary of the Treasury, as a member of the mission 
to negotiate the Treaty of Ghent until he had resigned his 
position as Secretary of the Treasury.\42\
---------------------------------------------------------------------------
    \42\ Wright, Quincy. The Control of Foreign Relations. New York, 
Macmillan, 1922. pp. 328-331.
---------------------------------------------------------------------------
    Recent Presidents have also decided not to submit some 
appointments of negotiators to the Senate, although in the 20th 
century such nominations were rarely rejected by the Senate, 
and none have been since World War II. Nevertheless the 
possibility remains that a nomination might not be approved. 
Several nominations have raised a controversy or not been acted 
upon, and two were unfavorably reported by the Foreign 
Relations Committee.\43\
---------------------------------------------------------------------------
    \43\ In 1981, the Senate Foreign Relations Committee reported 
unfavorably the nomination of Ernest W. Lefever as Assistant Secretary 
for Human Rights and Humanitarian Affairs; the President, at the 
nominee's request, then withdrew the nomination. In 1983, the committee 
reported unfavorably the nomination of Kenneth L. Adelman as Director 
of the Arms Control and Disarmament Agency, but the nomination was 
approved by the full Senate.
---------------------------------------------------------------------------
    Presidents have sometimes conferred the ``personal rank'' 
of ambassador on persons appointed without Senate approval in 
order for the person to have equal diplomatic standing with 
representatives of other nations. The first person to receive 
the personal rank of ambassador was Whitelaw Reid, sent by 
President McKinley in 1897 for the ceremonial occasion of the 
60th anniversary of Queen Victoria's accession to the throne. 
Later the practice was extended to negotiating occasions. After 
the First World War, for example, the Secretary of the American 
commission to negotiate peace was given the rank of minister 
plenipotentiary.\44\
---------------------------------------------------------------------------
    \44\ Wriston, Henry Merritt. Executive Agents in American Foreign 
Relations. Gloucester, Mass., Peter Smith, 1967, p. 197.
---------------------------------------------------------------------------
    Congress has taken action to curb the practice of according 
persons the title of ambassador without the advice and consent 
of the Senate.\45\ In 1972, Congress incorporated into law a 
limitation that the President could confer the personal rank of 
ambassador or minister on an individual only in connection with 
a special mission for the President of a temporary nature and 
for a period not exceeding 6 months.\46\ The Foreign Service 
Act of 1980 also requires the President, except in urgent 
circumstances, 30 days prior to the conferral of the personal 
rank to submit a written report to the Foreign Relations 
Committee justifying the appointment.\47\
---------------------------------------------------------------------------
    \45\ U.S. Congress. Senate Committee on Foreign Relations. The 
Ambassador in U.S. Foreign Policy; Changing Patterns in Rules, 
Selection, and Designation. Committee Print, July 1981, pp. 9-11.
    \46\ Public Law 92-352.
    \47\ Public Law 96-465, as amended; Sec. 302(a)(2)(B).
---------------------------------------------------------------------------

                D. Consultations During the Negotiations

    The earliest practice under the Constitution indicates that 
originally the Framers planned for the Senate to give advice to 
the President during the treatymaking process as well as to 
give or withhold consent to the final treaty,\48\ but this 
procedure soon ended. By the time President Polk referred the 
proposal to divide the Oregon Territory at the 49th parallel to 
the Senate for its advice prior to the signing of the Oregon 
Treaty of 1846, as well as for its consent afterward, it was a 
rare practice.\49\
---------------------------------------------------------------------------
    \48\ See Chapter II.
    \49\ Cheever, Daniel S. and H. Field Haviland. American Foreign 
Policy and the Separation of Powers. Cambridge, Harvard University 
Press, 1952. p. 49.
---------------------------------------------------------------------------
    As the process has evolved, the Senate as a whole does not 
give, and the President does not seek, its advice on a treaty 
until the end of the process when it is asked to give its 
advice and consent to ratification.
    Nevertheless, Presidents or their Secretaries of State have 
often consulted with individual Senators or committees prior to 
or during the negotiating process in order to enhance the 
prospects of the final treaty. Secretary of State Webster 
consulted frequently with important Senators about the Webster-
Ashburton Treaty of 1842 settling the Canadian-Maine 
boundary.\50\ With President Taylor a Whig and the Senate in 
control of the Democrats, Secretary of State Clayton consulted 
Senators of both parties over the Clayton-Bulwer Treaty of 1850 
concerning a canal in Central America. The practice has been 
continued intermittently throughout the 20th century.
---------------------------------------------------------------------------
    \50\ Cheever and Haviland, p. 48.
---------------------------------------------------------------------------
    The consultations can take many forms and can be initiated 
either by the Senate or the executive branch. The Senate 
Foreign Relations Committee or other committees may hold 
consultative meetings with executive branch officials on 
objectives and problems in treaties. Executive branch officials 
frequently discuss prospective treaties with individual 
Senators or committees, particularly the Senate Foreign 
Relations Committee because of its jurisdiction over treaties. 
Other methods of consultation include public oversight 
hearings, telephone discussions, letters, and contacts through 
staff members to exchange information and views on progress and 
problems in the negotiations.
    Sometimes the consultation is effective in the sense that 
congressional views help shape the final product. One of the 
best examples is the drafting of the U.N. Charter. On May 27, 
1942, the chairman of the Foreign Relations Committee Senator 
Tom Connally, and Senator Warren R. Austin, the minority member 
of the committee designated after consultation with Republican 
leaders, and later other Members of both houses of Congress, 
were invited to participate in an Advisory Committee on Postwar 
Foreign Policy that did much of the initial planning for the 
United Nations. By 1944 a bipartisan committee of eight Members 
was meeting weekly for this purpose. In the case of the North 
Atlantic Treaty the Senate Foreign Relations Committee was 
consulted frequently during the negotiations and suggested 
specific language in the text.\51\
---------------------------------------------------------------------------
    \51\ U.S. Congress. Senate. Committee on Foreign Relations. S. 
Exec. Rept. 8, 81st Cong., 1st Sess. Report on North Atlantic Treaty, 
p. 6.
---------------------------------------------------------------------------
    On occasion Congress has passed legislation requesting or 
requiring provision of information about negotiations. The 
International Development and Food Assistance Act of 1978 
required the Secretary of State to keep the Senate Foreign 
Relations and House Foreign Affairs and the Appropriations 
Committees ``fully and currently informed of any negotiations 
with any foreign government with respect to any cancellation, 
renegotiations, rescheduling, compromise, or other form of debt 
relief * * * with regard to any debt owed to the United States 
by any such foreign government,'' and to submit the texts of 
any agreement that would result in debt relief no less than 30 
days prior to its entry into force.\52\
---------------------------------------------------------------------------
    \52\ Sec. 603, Public Law 95-424, approved October 6, 1978.
---------------------------------------------------------------------------
    At other times legislation has required consultations on 
the negotiations. Since 1981, the International Financial 
Institutions Act has required the administration to consult 
with 16 specified Members of Congress (the chairmen and ranking 
minority members of the authorizing and appropriations 
committees and subcommittees having appropriate jurisdiction) 
prior to, during, and at the close of any international 
negotiations that might involve new U.S. contributions to the 
multilateral development banks.\53\
---------------------------------------------------------------------------
    \53\ Sec. 1201 of International Financial Institutions Act, Public 
Law 95-118, approved October 3, 1977.
---------------------------------------------------------------------------
    The Trade Act of 1974 provided that before the President 
enters into any trade agreement relating to nontariff barriers, 
he ``shall consult'' with the Committee on Ways and Means of 
the House, the Finance Committee of the Senate, and each 
committee or joint committee of Congress having jurisdiction 
over legislation involving subject matters affected by the 
agreement.\54\ The legislation made consultation mandatory by 
providing that any agreement could enter into force only if the 
President gave Congress 90 days prior notification and 
presented an implementing bill which was enacted into law.\55\ 
The Omnibus Trade and Competitiveness Act of 1988 revised 
``fast-track'' or expedited procedures for implementing trade 
legislation and required increased consultation with 
Congress.\56\
---------------------------------------------------------------------------
    \54\ Sec. 102(c) of the Trade Act of 1974, Public Law 93-618, 
approved January 3, 1975.
    \55\ Sec. 102(d) of the Trade Act of 1974.
    \56\ Public Law 100-418, approved August 23, 1988.
---------------------------------------------------------------------------
    Another category of Senate or congressional action might be 
considered ``consultation'': action critical of executive 
branch positions taken during or just after negotiations, with 
clear notice or the implication that the Senate will not 
favorably consider any treaty adopted with the offending 
provisions or effect remaining in the adopted treaty text. At 
least four recent examples can be identified. First, during the 
protracted negotiations that led to adoption of the 1982 United 
Nations Convention on the Law of the Sea, Congress considered 
legislation setting up a U.S. domestic regime for deep seabed 
hard mineral resource development. During Senate floor debate 
on these legislative proposals on December 14, 1979, several 
Senators identified the problems they found with the treaty 
provisions being negotiated and specifically characterized 
their statements as ``instructions'' to the executive branch, 
to be considered as ``advice'' under the Constitution's 
``advice and consent'' clause relating to treaties. Thereafter, 
Congress passed the Deep Seabed Hard Mineral Resources Act, 
which was signed by President Carter in June 1980 (Public Law 
96-283). President Reagan, in 1982, after reviewing the treaty 
texts, decided not to support its adoption. Later, in 1994, an 
agreement was adopted changing many of the objectionable 
convention provisions, and President Clinton transmitted the 
convention and agreement to the Senate (Treaty Doc. 103-39) 
where they remain, pending since 1994.\57\ The Senate thus 
expressed its views, and some in Congress, even many years 
afterward and with treaty amendments adopted, viewed the treaty 
as flawed.
---------------------------------------------------------------------------
    \57\ See U.S. Congress. House. Committee on Foreign Affairs. 
Congress and Foreign Policy--1980. Washington, U.S. Government Printing 
Office, 1981 (Committee Print). Chapter on Congress and Deep Seabed 
Mining Legislation, especially pp. 124-126. See also, last section in 
this chapter, infra.
---------------------------------------------------------------------------
    Senate and congressional actions after negotiation and 
adoption, in 1988, of the Convention on the Regulation of 
Antarctic Mineral Resource Activities show the way 
congressional expressions of disapproval of a just adopted and 
signed treaty led to the negotiation and adoption of a 
completely new treaty. Congress, by joint resolution, stated 
that the signed convention did not ``guarantee the protection'' 
of the Antarctic marine environment and ``could actually 
stimulate * * * commercial exploitation.'' Congress urged the 
executive branch to negotiate protocols or agreements that 
would provide ``comprehensive environmental protection of 
Antarctica'' and close the region to ``commercial minerals 
development * * * for an indefinite period.'' The resolution 
also stated that the President should not send the convention 
to the Senate before the environmental agreements were in 
force.\58\ On October 7, 1992, the Senate approved the Protocol 
on Environmental Protection to the Antarctic Treaty which had 
been signed a year earlier and sent to the Senate.\59\
---------------------------------------------------------------------------
    \58\ U.S. Congress. Senate. Committee on Foreign Relations. 
Legislative Activities Report * * *, 101st Congress, January 3, 1989-
October 28, 1990. Washington, U.S. Government Printing Office, 1991. 
pp. 96-97 (102d Cong., 1st Sess. S. Rept. 102-30)
    \59\ U.S. Congress. Senate. Committee on Foreign Relations. 
Legislative Activities Report * * *, 102d Congress, January 3, 1991-
October 8, 1992. Washington, U.S. Government Printing Office, 1993. pp. 
72-74. (103d Cong., 1st Sess. Senate. Report 103-35)
---------------------------------------------------------------------------
    Another example of the Senate's expression of its views on 
the content of a treaty, both during negotiations and after its 
adoption and U.S. signature, is the Kyoto Protocol to the 
United Nations Framework Convention on Climate Change. Detailed 
information on this protocol, adopted in December 1997 and 
signed by the United States on November 12, 1998, is found in 
Chapter X, infra. In July 1997, before the protocol was 
adopted, the Senate had expressed its views on the treaty text 
in S. Res. 98. The protocol text did not meet the requirements 
set by the Senate resolution.
    A fourth example is the Statute of the International 
Criminal Court (ICC), adopted in Rome in July 1998 and signed 
on behalf of the United States on December 31, 2000. While some 
Senators expressed support for an ICC, others expressed 
concerns over the content of the statute while it was under 
negotiation and afterward. They worried that ICC actions could 
infringe on or diminish the rights of American citizens under 
the first and fourth amendments of the U.S. Constitution. 
During the 106th Congress, the Senate Foreign Relations 
Committee, in response to these concerns, added understandings 
to resolutions of advice and consent to ratification of U.S. 
treaties on mutual legal assistance in criminal matters and to 
extradition treaties. See Chapter X, infra, for further 
discussion.

            inclusion of members of congress on delegations

    On occasion Senators or Representatives have served as 
members of or advisers to the U.S. delegation negotiating a 
treaty. The practice has occurred throughout American history. 
In September 1898, President William McKinley appointed three 
Senators to a commission to negotiate a treaty with Spain. 
President Warren G. Harding appointed Senators Henry Cabot 
Lodge and Oscar Underwood as delegates to the Conference on the 
Limitation of Armaments in 1921 and 1922 which resulted in four 
treaties, and President Hoover appointed two Senators to the 
London Naval Arms Limitation Conference in 1930.
    The practice has increased since the end of the Second 
World War, in part because President Wilson's lack of inclusion 
of any Senators in the American delegation to the Paris Peace 
Conference was considered one of the reasons for the failure of 
the Versailles Treaty. Four of the eight members of the 
official U.S. delegation to the San Francisco Conference 
establishing the United Nations were Members of Congress: 
Senators Tom Connally and Arthur Vandenberg and Representatives 
Sol Bloom and Charles A. Eaton.
    There has been some controversy over active Members of 
Congress serving on such delegations. When President James 
Madison appointed Senator James A. Bayard and Speaker of the 
House Henry Clay to the commission that negotiated the Treaty 
of Ghent in 1814, both resigned from Congress to undertake the 
task. More recently, as in the annual appointment of Senators 
or Members of Congress to be among the U.S. representatives to 
the United Nations General Assembly, Members have participated 
in delegations without resigning, and many observers consider 
it ``now common practice and no longer challenged.'' \60\
---------------------------------------------------------------------------
    \60\ Henkin, Louis. Foreign Affairs and the Constitution. Mineola, 
N.Y. Foundation Press, 1972, p. 132.
---------------------------------------------------------------------------
    One issue has been whether service by a Member of Congress 
on a delegation violated Article I, Section 6 of the 
Constitution. This section prohibits Senators or 
Representatives during their terms from being appointed to a 
civil office if it has been created or its emoluments increased 
during their terms, and prohibits a person holding office to be 
a Member of the Senate or House. Some contend that membership 
on a negotiating delegation constitutes holding an office while 
others contend that because of its temporary nature it is not.
    Another issue concerns the separation of powers. One view 
is that as a member of a negotiating delegation a Senator would 
be subject to the instructions of the President and would face 
a conflict of interest when later required to vote on the 
treaty in the Senate. Others contend that congressional members 
of delegations may insist on their independence of action and 
that in any event upon resuming their legislative duties have a 
right and duty to act independently of the executive branch on 
matters concerning the treaty.
    A compromise solution has been to appoint Members of 
Congress as advisers or observers, rather than as members of 
the delegation. The administration has on numerous occasions 
invited one or more Senators and Members of Congress or 
congressional staff to serve as advisers to negotiations of 
multilateral treaties.\61\ In 1991 and 1992, for example, 
Members of Congress and congressional staff were included as 
advisers and observers in the U.S. delegations to the United 
Nations Conference on Environment and Development and its 
preparatory meetings. In 1992, congressional staff advisers 
were included in the delegations to the World Administrative 
Radio Conference (WARC) of the International Radio Consultative 
Committee (CCIR) of the International Telecommunications Union.
---------------------------------------------------------------------------
    \61\ The names of congressional advisers to international 
conferences before December 15, 1995 may be found in an annual list of 
U.S. accredited delegations that includes private sector 
representatives, published in the Federal Register in accordance with 
Article III(c)(5) of the guidelines (March 23, 1987). The last list was 
published in Federal Register, December 2, 1996, vol. 61, no. 232, pp. 
63892-63916. Publication of this list was discontinued after the 
preparing Office of International Conferences, Department of State, 
ceased receiving funding that enabled the Office to compile and file 
the report with the Federal Register.
---------------------------------------------------------------------------
    In the early 1990s, Congress took initiatives to assure 
congressional observers. The Senate and House each designated 
an observer group for strategic arms reductions talks with the 
Soviet Union that began in 1985 and culminated with the 
Strategic Arms Reduction Treaty (START) approved by the Senate 
on October 1, 1992. In 1991, the Senate established a Senate 
World Climate Convention Observer Group. As of late 2000, at 
least two ongoing groups of Senate observers existed:
          1. Senate National Security Working Group.--This is a 
        bipartisan group of Senators who ``act as official 
        observers to negotiations * * * on the reduction or 
        limitation of nuclear weapons, conventional weapons or 
        weapons of mass destruction; the reduction, limitation, 
        or control of missile defenses; or related export 
        controls.''
          2. Senate Observer Group on U.N. Climate Change 
        Negotiations.--This is a ``bipartisan group of 
        Senators, appointed by the Majority and Minority 
        Leaders'' to monitor ``the status of negotiations on 
        global climate change and report[ing] periodically to 
        the Senate * * *.'' \62\
---------------------------------------------------------------------------
    \62\ Congressional Yellow Book, Winter 2000, pp. 10-11. (Published 
by Leadership Directories, Inc., New York and Washington, D.C.)
---------------------------------------------------------------------------

                        E. Conclusion or Signing

    The conclusion of an international agreement, usually 
indicated by signing or initialing a document or by an exchange 
of notes, is the end of the negotiations process and indicates 
that the negotiators have agreed on the terms of the agreement. 
Like the negotiation, the conclusion or signing is done by the 
President or his representatives and is considered a function 
of the executive branch.
    On occasion, Members of Congress have been among the 
signatories of treaties. Among those signing the U.N. Charter 
for the United States were Senators Tom Connally and Arthur H. 
Vandenberg and Representatives Sol Bloom and Charles A. Eaton. 
Senators Alexander Wiley and John Sparkman signed the Peace 
Treaty with Japan on September 8, 1951, and Senators Arthur 
Vandenberg and Tom Connally and Representative Sol Bloom signed 
the Inter-American Treaty of Reciprocal Assistance on September 
2, 1947.
    Signing an international agreement may indicate a nation's 
consent to be bound if this is its intention. Under U.S. 
practice this would be the case only with executive agreements; 
treaties are required to go through the ratification process to 
be binding. Occasionally, one government may intend signing of 
an international agreement to indicate consent to be bound 
while another signs subject to ratification. This was the case 
with the Agreement on Friendship, Defense, and Cooperation 
between the United States and the Kingdom of Spain, signed July 
2, 1982. The Spanish representative signed the agreement 
subject to ratification by the Cortes Generale, the Spanish 
Parliament, while the U.S. representative signed the document 
as an executive agreement that did not require ratification.

          F. Renegotiation of a Treaty Following Senate Action

    One view is that the Senate, in effect, participates in the 
negotiation of a treaty when the Senate's consideration of a 
treaty leads to a renegotiation of articles in the treaty. At 
the turn of the century, Senator Henry Cabot Lodge took the 
position that the Senate's consideration of a treaty should be 
viewed as a stage in the negotiation, and that a Senate 
amendment to a treaty is a proposition ``offered at a later 
stage of the negotiation by the other part of the American 
treaty-making power in the only manner in which they could then 
be offered. * * *'' He continued:
          The treaty, so called, is therefore still inchoate, a 
        mere project for a treaty, until the consent of the 
        Senate has been given to it * * * the Senate can only 
        present its views to a foreign government by 
        formulating them in the shape of amendments, which the 
        foreign government may reject, or accept, or meet, with 
        counter propositions, but of which it has no more right 
        to complain, than it has to complain of the offer of 
        any germane proposition at any other stage of the 
        negotiation.\63\
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    \63\ Lodge, Henry Cabot. The Treaty-Making Powers of the Senate. In 
A Fighting Frigate and Other Essays and Addresses. New York, Scribner's 
1902, pp. 222-224.

    Renegotiation of a treaty after Senate consideration is not 
frequent, and in the case of multilateral treaties is usually 
considered infeasible because of the number of countries 
involved and the problems in arriving at the original 
agreement. Nevertheless, on occasion treaties, particularly 
bilateral treaties, are renegotiated or negotiated further and 
amended by protocol as a result of Senate consideration.\64\
---------------------------------------------------------------------------
    \64\ See also discussion in Chapter VII, Resubmission of the Treaty 
or Submission of Protocol.
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    To illustrate, after hearings by various congressional 
committees on the Panama Canal treaties signed by President 
Carter and General Torrijos on September 7, 1977, President 
Carter and General Torrijos met on October 14, 1977, and issued 
a statement of understanding clarifying U.S. rights under the 
Neutrality Treaty. A number of congressional delegations, 
including separate ones headed by Senators Robert Byrd, the 
Majority Leader of the Senate, Howard Baker, the Minority 
Leader, and John Sparkman, chairman of the Foreign Relations 
Committee, visited Panama and discussed possible modifications 
with United States and Panamanian officials. The Senate gave 
its advice and consent to ratification of the Neutrality Treaty 
subject to two amendments that incorporated the Carter-Torrijos 
statement of understanding into Articles IV and VI.\65\
---------------------------------------------------------------------------
    \65\ U.S. Congress. Senate. Committee on Foreign Relations. 
Legislative Activities Report, 95th Cong., S. Rept. 96-47, p. 21.
---------------------------------------------------------------------------
    As a second illustration, in 1978 the Senate added a 
reservation before approving a tax convention with the United 
Kingdom. Another reservation had been withdrawn after the 
Treasury Department assured the sponsor that a protocol would 
be negotiated to take care of the issue.\66\ In 1979 a protocol 
to the tax convention dealing with the concerns in both 
reservations was submitted to and approved by the Senate.\67\
---------------------------------------------------------------------------
    \66\ Ibid., pp. 4-6.
    \67\ U.S. Congress. Senate. Committee on Foreign Relations. 
Legislative Activities Report, 96th Cong., S. Rept. 97-29, pp. 7-10.
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     G. Interim Between Signing and Entry Into Force; Provisional 
                              Application

    Although it has been signed, a bilateral treaty does not 
enter into force until the parties ratify it and exchange 
ratifications. A multilateral treaty does not enter into force 
until a specified number of parties deposit their 
ratifications. Between the signing and entry into force, there 
is an interim period in which governments are not yet legally 
bound, but they have tentatively agreed to a future course of 
action. In the United States, this includes those periods (1) 
from signing to submission to the Senate, (2) during Senate 
consideration, (3) from Senate approval to Presidential signing 
of the ratification, and (4) from the ratification to the 
exchange or deposit of ratifications and entry into force.
    During this interim period the treaty is not yet in effect, 
but under international law nations have an obligation not to 
do anything that would defeat the purpose of the treaty. The 
Vienna Convention states in Article 18:
          A state is obliged to refrain from acts which would 
        defeat the object and purpose of an international 
        agreement when: (a) it has signed the agreement or has 
        exchanged instruments constituting the agreement 
        subject to ratification, acceptance or approval, until 
        it shall have made its intention clear not to become a 
        party to the agreement; or (b) it has expressed its 
        consent to be bound by the agreement, pending the entry 
        into force of the agreement and provided that such 
        entry into force is not unduly delayed.

    Beyond this there is the question of taking measures during 
the interim period to begin to carry out the treaty, such as 
establishing a preparatory commission. Sometimes treaties 
themselves provide for their provisional application. The 
Vienna Convention states in Article 25:
          1. A treaty or a part of a treaty is applied 
        provisionally pending its entry into force if:
                  (a) the treaty itself so provides; or
                  (b) the negotiating States have in some other 
                manner so agreed.
          2. Unless the treaty otherwise provides or the 
        negotiating States have otherwise agreed, the 
        provisional application of a treaty or a part of a 
        treaty with respect to a State shall be terminated if 
        that State notifies the other States between which the 
        treaty is being applied provisionally of its intention 
        not to become a party to the treaty.

    In the United States, provisional application of a treaty 
may be subject to question especially if it gives temporary 
effect to a treaty prior to its receiving the advice and 
consent of the Senate. An agreement to apply a treaty 
provisionally is in essence an executive agreement to undertake 
temporarily what the treaty may call for permanently. It ``must 
normally rest on the President's own constitutional 
authority.'' \68\ According to the Department of State, the 
President may also make a unilateral policy decision, without 
reaching agreement with the other parties to apply the treaty 
provisionally, ``so long as the obligations undertaken are all 
within the competence of the President under U.S. law.'' \69\ 
The primary factor for determining the appropriateness of 
provisional application, in the State Department view, 
``relates to the immediate need to settle quickly matters in 
the interest of the United States which are within the 
President's domestic law competence.'' \70\
---------------------------------------------------------------------------
    \68\ Rest. 3d, Sec. 312.
    \69\ Administration's Responses to Additional Questions Submitted 
for the Record by Senator Javits. In U.S. Congress. Senate. S. Exec. 
Rept. 96-49. Report to Accompany Execs. F, G, and H, 96-1. Washington, 
U.S. Government Printing Office, 1980. pp. 26-27. [Hearing on treaties 
is included in this document.]
    \70\ Ibid.
---------------------------------------------------------------------------
    An example of a treaty pending in the Senate that has been 
provisionally applied by executive agreement is the maritime 
boundary agreement between the United States and Cuba, signed 
December 16, 1977. Originally, an executive agreement, by 
exchange of notes on April 27, 1977, had established a modus 
vivendi on a provisional maritime boundary to serve during that 
year while negotiations were underway. The treaty signed on 
December 16, 1977, contained a provision that the parties agree 
to apply the terms of the agreement ``provisionally'' for a 
period of 2 years from January 1, 1978. According to the 
Department of State, ``this agreement constituted an executive 
agreement contained within the text of the treaty.'' \71\ The 
treaty was transmitted to the Senate on January 23, 1979, and 
debated in the Senate, but final action was not taken. The 
treaty is still pending in the committee. The provisional 
application was subsequently extended for additional periods, 
most recently by an exchange of notes of December 30, 1997 and 
March 30, 1998.\72\
---------------------------------------------------------------------------
    \71\ Ibid.
    \72\ Agreement effective January 1, 1998, for 2 years through 
January 1, 2000. The text was transmitted to Congress under the 
provisions of 1 U.S.C. 112b (the Case-Zablocki Act), and can be found 
online in TIARA, a subscription database of Oceana Publications, 
``http://www.oceanalaw.com.'' As of December 15, 2000, information on a 
further extension was not transmitted to Congress.
---------------------------------------------------------------------------
    The Senate Foreign Relations Committee raised questions 
concerning the provisional application in its hearings on the 
treaty. The Department of State said that in its judgment the 
President had authority to enter into provisional maritime 
boundary agreements, and cited as precedents a provisional 
boundary line between Alaska and Canada on October 20, 1899, 
and on the Stacking River on February 20, 1878.\73\
---------------------------------------------------------------------------
    \73\ S. Exec. Rept. 96-49, pp. 26-27.
---------------------------------------------------------------------------
    If a treaty has been approved by the Senate but not yet 
ratified by the President, or if there has been consultation 
with the Senate, the provisional application of a treaty may 
not raise objections. In one instance the United States 
submitted a declaration of provisional application of the 1962 
International Coffee Agreement after the Senate gave its advice 
and consent but before the implementing legislation had been 
passed by Congress. The declaration indicated that the United 
States would not assume any obligations for which such 
legislation was necessary.\74\
---------------------------------------------------------------------------
    \74\ 14 Whiteman, p. 92.
---------------------------------------------------------------------------
    In another case the executive branch submitted a 
declaration of provisional application of the 1971 
International Wheat Agreement after consultation and consent by 
the Senate Foreign Relations Committee, and for the 1975 and 
1976 protocols before the Foreign Relations Committee completed 
action.
    The observance in practice of two agreements between the 
United States and the Soviet Union on strategic arms limitation 
that had either not been ratified or had expired has also 
raised the question of application of a treaty that was not in 
force. The SALT I Interim Agreement on Certain Measures with 
Respect to the Limitation of Strategic Offensive Arms, was 
authorized by Congress and entered into force on October 3, 
1973, for 5 years.
    The SALT II Treaty on the Limitation of Strategic Offensive 
Arms was signed by the United States on June 18, 1979, but 
Senate action on it was indefinitely postponed after the Soviet 
invasion of Afghanistan. The administration adopted the policy, 
as expressed by President Reagan on May 31, 1982, that ``As for 
existing strategic arms agreements, we will refrain from 
actions which undercut them so long as the Soviet Union shows 
equal restraint.'' The Senate Foreign Relations Committee 
reported a resolution (S.J. Res. 212) on July 12, 1982, which 
resolved that to provide a basis for progress during new 
negotiations, ``the United States shall continue to refrain 
from actions which would undercut the SALT I and SALT II 
agreements, provided the Soviet Union shows equal restraint.'' 
The committee reported that its purpose was to give the 
President's statement the full force and effect of law. The 
Subcommittee on Separation of Powers of the Senate Judiciary 
Committee held hearings on the resolution and urged its 
rejection on grounds, among others, that,
          In attempting to bind the United States to treaty 
        obligations without securing the approval of two-thirds 
        of the Senate, the resolution improperly limits the 
        President's negotiating powers in the area or foreign 
        affairs; it improperly attempts to transform a treaty 
        into some other form of international obligation; and 
        it improperly ignores the exclusive advice and consent 
        function of the Senate by making the obligation 
        dependent upon approval by the House of 
        Representatives.\75\
---------------------------------------------------------------------------
    \75\ U.S. Congress. Senate. Committee on the Judiciary. Joint 
Resolution with Respect to Nuclear Arms Reductions. Report on S.J. Res. 
212. Committee Print. September 1982, 97th Cong., 2d Sess., p. 9.

On October 12, 2000, the Senate, in passing S. Res. 267, 
returned the SALT II Treaty (Treaty Doc. 96-25) to the 
President, as part of a package of 17 treaties. This action had 
been recommended by the Senate Foreign Relations Committee.
    Another recent example of the use of provisional 
application is in the 1994 Agreement Relating to Implementation 
of Part XI of the 1982 United Nations Convention on the Law of 
the Sea. The agreement was adopted between the time the 1982 
convention was adopted and the time it entered into force 
(November 16, 1994). The agreement was applied provisionally 
between November 16, 1994, and July 28, 1996, when it entered 
into force. Thereafter, States that had not ratified the 
convention/agreement package by July 28, 1996, could continue 
membership in the International Seabed Authority, the 
international organization set up by the convention/agreement 
package until November 16, 1998. Negotiators, in 1994, 
considered this 4-year interval to be a time period sufficient 
to allow non-states parties to adhere to the package. On 
November 16, 1998, however, the United States and seven other 
countries that enjoyed provisional membership in the 
International Seabed Authority but had not yet ratified or 
adhered to the convention/agreement package lost that 
membership, becoming observer states.
    If the provisional application of a treaty became 
contentious, it would be up to the President or the Senate, 
depending on where the treaty resided at the time, to make 
clear either the intention to proceed with the ratification 
process and become a party, or the intention not to become a 
party.


                VI. SENATE CONSIDERATION OF TREATIES \1\
---------------------------------------------------------------------------

    \1\ Prepared by Stanley Bach, Senior Specialist in the Legislative 
Process and David M. Ackerman, Legislative Attorney. For additional 
information see: Riddick, Floyd M. and Alan S. Frumin, Riddick's Senate 
Procedure, Sen. Doc. 101-28, 1992, especially pp. 832-843 (``Executive 
Business and Executive Sessions'') and 1294-1310 (``Treaties'').
---------------------------------------------------------------------------
                              ----------                              

    The Constitution, in Article II, Section 2, Clause 2, 
provides that the President ``shall have Power, by and with the 
Advice and Consent of the Senate, to make Treaties, provided 
two-thirds of the Senators present concur.'' It is the 
President who negotiates and ultimately ratifies treaties for 
the United States, but only if the Senate in the intervening 
period gives its advice and consent. This chapter concerns the 
practices and procedures that the Senate follows after the 
President formally submits a treaty for the Senate's advice and 
consent.
    Whatever the authors of the Constitution may have meant by 
the phrase ``advice and consent'' with regard to treaties, it 
is generally used today to describe the process of Senate 
approval following Presidential transmission to the Senate of a 
fully negotiated and signed document. The ``Founding Fathers'' 
undoubtedly envisioned in their original conception of 
``treaty-making'' that the Senate would fulfill the role of 
collective advisor to the President in the initiation and 
conduct of negotiations. For reasons outlined earlier in this 
study, however, that type of advice now is rarely sought from 
the Senate. Consultations are not uncommon with respect to 
treaties on matters of major national importance, such as 
nuclear arms control, and Members of the Senate (and the House 
as well) frequently are appointed as advisors or observers to 
U.S. delegations. In addition, pursuant to the Case-Zablocki 
Act \2\ and the consultation procedures to which the State 
Department agreed in 1978,\3\ the Senate and the executive 
branch have taken steps toward increased notification to and 
consultation with the Senate with respect to executive branch 
negotiation and execution of international agreements and 
treaties.\4\ What Presidents generally seek from Senators, 
however, is not advice in advance but consent after the fact--
after negotiations have been completed. Most treaties engage 
the Senate only after their formal transmission by the 
President for approval. Nevertheless, the Senate often provides 
a measure of after-the-fact ``advice'' along with its 
``consent.''
---------------------------------------------------------------------------
    \2\ Public Law 92-403, as amended. 1 U.S.C. 112b. See Appendix 2.
    \3\ See S. Res. 536 and S. Rept. 95-1171, 95th Cong.
    \4\ See discussion in Chapter X.
---------------------------------------------------------------------------
    Contrary to past characterizations of the Senate as the 
``graveyard of treaties,'' the overwhelming majority of 
treaties receive favorable Senate action within a reasonable 
period of time. Few treaties languish indefinitely or are 
returned to the President without approval, and even fewer are 
defeated outright by vote of the Senate. Likewise, most 
treaties survive the process of advice and consent without 
material change, although the Senate in recent years has 
expanded its use of conditions that are attached to its 
resolutions of ratification. In most cases, the process of 
Senate consideration is expedited, without using the full 
procedures available under Senate rules, and Senate approval 
frequently is unanimous. However, the most controversial and 
important treaties can receive extended consideration, in 
committee and on the Senate floor, during which numerous 
amendments and conditions may be proposed.

                     A. Senate Receipt and Referral

    All treaties are transmitted to the Senate in the 
President's name, a procedure that typically first involves 
formal submission of the agreement to the President by the 
Secretary of State and may include a separate review of the 
agreement by the White House staff. Therefore, the time period 
between signature of a treaty and its actual transmission to 
the Senate for advice and consent may be considerable, as much 
for bureaucratic as for substantive or political reasons. But 
the President controls the timing of a treaty's submission. 
Occasionally an administration may decide not to submit a 
treaty that it or a previous administration had signed.
    The Senate receives a Presidential message consisting of 
the official title and text of the treaty (the original in the 
case of a bilateral treaty, a certified copy in the case of a 
multilateral one) and a letter of transmittal, signed by the 
President, requesting Senate advice and consent and 
incorporating the earlier Letter of Submittal from the 
Secretary of State to the President. The Secretary's letter 
usually contains a detailed description and analysis of the 
treaty. The Presidential message also may contain protocols, 
annexes, or other documents that the President submits to the 
Senate to be considered as integral parts of the proposed 
treaty (as distinguished from documents submitted for 
information purposes only). They are referred to collectively 
as the treaty and its official papers. These documents, which 
have been submitted to the Senate for advice and consent to 
ratification as integral parts of a treaty, are subject to a 
single vote of advice and consent. For the same reason, only a 
treaty and its official papers, when formally before the 
Senate, are subject to amendment.
    If the executive branch concludes a protocol amending a 
treaty that is pending in the Senate, the protocol is submitted 
to the Senate as a new treaty. The Senate may decide, however, 
to consider the treaty and protocol together and approve them 
by means of a single resolution of ratification.\5\
---------------------------------------------------------------------------
    \5\ See Appendix 7, Simultaneous Consideration of Treaties and 
Amending Protocols: Selected Precedents.
---------------------------------------------------------------------------

                            senate rule xxx

    Senate Rule XXX governs the process of treaty consideration 
in the Senate. As revised on February 27, 1986, Rule XXX states 
\6\:
---------------------------------------------------------------------------
    \6\ The Senate's standing rules were revised and renumbered in 
1980, which can lead to difficulties when references are made to 
earlier publications. In addition, S. Res. 28, adopted on February 27, 
1986, made a significant change in Rule XXX. Previously, the rule 
provided for a first stage of floor consideration, during which the 
Senate would meet ``as in Committee of the Whole'' and act on any 
proposed amendments to each article of the treaty in sequence. Although 
the full procedures of Rule XXX rarely were invoked, they were followed 
during Senate consideration of the Versailles Peace Treaty following 
World War I, the Panama Canal Treaties in 1978, and the Genocide 
Convention in 1986. Citations to Senate rules are to the publication 
Standing Rules of the Senate, 106th Cong., 2d Sess., November 19, 1999, 
Document 106-15.
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               executive session--proceedings on treaties

          1. (a) When a treaty shall be laid before the Senate 
        for ratification, it shall be read a first time; and no 
        motion in respect to it shall be in order, except to 
        refer it to a committee, to print it in confidence for 
        the use of the Senate, or to remove the injunction of 
        secrecy.
          (b) When a treaty is reported from a committee with 
        or without amendment, it shall, unless the Senate 
        unanimously otherwise directs, lie over one day for 
        consideration; after which it may be read a second 
        time, after which amendments may be proposed. At any 
        stage of such proceedings the Senate may remove the 
        injunction of secrecy from the treaty.
          (c) The decisions thus made shall be reduced to the 
        form of a resolution of ratification, with or without 
        amendments, as the case may be, which shall be proposed 
        on a subsequent day, unless, by unanimous consent, the 
        Senate determines otherwise, at which stage no 
        amendment to the treaty shall be received unless by 
        unanimous consent; but the resolution of ratification 
        when pending shall be open to amendment in the form of 
        reservations, declarations, statements, or 
        understandings.
          (d) On the final question to advise and consent to 
        the ratification in the form agreed to, the concurrence 
        of two-thirds of the Senators present shall be 
        necessary to determine it in the affirmative; but all 
        other motions and questions upon a treaty shall be 
        decided by a majority vote, except a motion to postpone 
        indefinitely, which shall be decided by a vote of two-
        thirds.
          2. Treaties transmitted by the President to the 
        Senate for ratification shall be resumed at the second 
        or any subsequent session of the same Congress at the 
        stage in which they were left at the final adjournment 
        of the session at which they were transmitted; but all 
        proceedings on treaties shall terminate with the 
        Congress, and they shall be resumed at the commencement 
        of the next Congress as if no proceedings had 
        previously been had thereon.

             action on receipt of treaty from the president

    When a treaty message is received from the President, it is 
transmitted by the Senate Parliamentarian to the Executive 
Clerk, who is responsible for treaties and nominations. The 
Executive Clerk assigns it a message number and prepares a 
procedural request for unanimous consent to remove the 
injunction of secrecy referred to in Senate Rules XXIX and 
XXX.\7\ (This injunction originated during the days when Senate 
executive sessions were conducted in secret. Treaties today are 
normally made public when signed or even earlier.) Ordinarily, 
the Senate routinely agrees to the Majority Leader's request to 
remove the injunction of secrecy. If any Senator should object 
to the request, the full Senate can agree to a resolution 
removing the injunction of secrecy, as provided in Senate Rule 
XXIX. On at least one recent occasion, such an objection was 
used to throw a temporary procedural roadblock in the way of 
Senate consideration of a tax treaty.\8\
---------------------------------------------------------------------------
    \7\ Paragraph 3 of Rule XXIX provides that ``All confidential 
communications made by the President of the United States to the Senate 
shall be by the Senators and the officers of the Senate kept secret; 
and all treaties which may be laid before the Senate, and all remarks, 
votes, and proceedings thereon shall also be kept secret, until the 
Senate shall, by their resolution, take off the injunction of 
secrecy.''
    \8\ On July 21, 1980, Senator Mike Gravel of Alaska objected to a 
unanimous consent request to remove the injunction of secrecy from a 
revised income tax convention with Israel.
---------------------------------------------------------------------------
    Since Senate consideration of treaties is a matter of 
executive business, the Senate must be in executive session \9\ 
in order to remove the injunction of secrecy or take any other 
floor action with respect to a treaty. The motion to go into 
executive session is non-amendable and non-debatable but is 
subject to a request for a roll call vote. Normally, however, 
the Senate moves between executive and legislative session by 
unanimous consent.
---------------------------------------------------------------------------
    \9\ The Senate meets in legislative session to transact its 
legislative business. The consideration of treaties and nominations, on 
the other hand, constitutes the Senate's executive business and takes 
place in executive session. By unanimous consent, the Senate sometimes 
transacts some executive business without first resolving into 
executive session. On January 3, 2001, the first day of the 107th 
Congress, for example, the Senate agreed to a unanimous consent request 
that, ``for the duration of the 107th Congress, it shall be in order to 
refer [to committee] treaties and nominations on the day when they are 
received from the President, even when the Senate has no executive 
session that day.'' Congressional Record, January 3, 2001, p. S8 (daily 
ed.).
---------------------------------------------------------------------------
    The request of the Majority Leader is typically in the 
following form:
          I ask unanimous consent that the injunction of 
        secrecy be removed from the Third Protocol to the 1975 
        Tax Convention with the United Kingdom of Great Britain 
        and Northern Ireland, as amended, signed at London on 
        March 15, 1979 (Executive Q, 96th Cong., 1st Sess.), 
        transmitted to the Senate by the President of the 
        United States on April 12, 1979.
          I ask that the treaty be considered as having been 
        read the first time, that it be referred to the 
        Committee on Foreign Relations and ordered to be 
        printed, and that the President's message be printed in 
        the Record.
          The PRESIDING OFFICER. Without objection, it is so 
        ordered.\10\
---------------------------------------------------------------------------
    \10\ Riddick, Floyd M. and Alan S. Frumin, Riddick's Senate 
Procedure. Sen. Doc. 101-28, 1992, p. 1300.

    Following the first reading and removal of the injunction 
of secrecy at the initiative of the Majority Leader, the 
Presiding Officer refers the treaty to the Committee on Foreign 
Relations, in accordance with Senate Rule XXV on the 
jurisdiction of standing committees. At this stage, the text of 
the President's message, the treaty, all documents submitted as 
integral parts of the treaty, and any other documents submitted 
for the information of the Senate, are printed by the U.S. 
Government Printing Office and made available online to the 
public.\11\
---------------------------------------------------------------------------
    \11\ Information may be found online at http://www.access.gpo.gov/
congress/doccat.html.
---------------------------------------------------------------------------
    Treaties are referred to committee after being read once, 
whereas bills and joint resolutions must, in principle, go 
through a second reading (a subsequent procedural step) before 
they are eligible for referral.
    Thereafter, each treaty is referred to by its Treaty 
Document Number, which consists of the number of the Congress 
in which it was transmitted, followed by a number representing 
the order in which treaties were submitted in that Congress, 
for example, Treaty Doc. 97-1 or 106-13. Before the 97th 
Congress in 1981, a letter designation was used rather than 
consecutive numbering (for example, Executive Q in the example 
quoted above). Treaties that were transmitted before that time 
and that, for one reason or another, have not been acted upon 
by the Senate retain their original designation. The 
International Labor Organization Convention No. 87 Concerning 
Freedom of Association and Protection of the Right to Organize, 
for example, which was originally transmitted by President 
Truman in 1949, is designated Ex. S, 81-1, for Eighty-first 
Congress, First Session.
    Since its creation in 1816, the Foreign Relations Committee 
has had exclusive jurisdiction over treaties, as presently 
recognized in Rule XXV.\12\ From time to time other Senate 
committees have sought referral of particular treaties, but 
without success. There have been various occasions, however, on 
which other committees have conducted hearings on the issues 
raised by particular treaties even though those committees did 
not have authority to make formal recommendations to the Senate 
regarding the treaties.
---------------------------------------------------------------------------
    \12\ Senate Rule XXV(l)(j)(1)17 states the Committee on Foreign 
Relations has jurisdiction over ``Treaties and executive agreements, 
except reciprocal trade agreements.'' Rule XXV(l)(i)7 states the 
Committee on Finance has jurisdiction over ``Reciprocal trade 
agreements.''
---------------------------------------------------------------------------
    In the case of the Treaty Between the United States of 
America and the Union of Soviet Socialist Republics on the 
Limitation of Strategic Offensive Arms and the Protocol 
Thereto,\13\ commonly known as SALT II, for example, the 
Committee on Armed Services held extensive hearings on the 
military implications of the treaty,\14\ similar to the 
parallel hearings it held in 1963 on the Nuclear Test Ban 
Treaty, in 1969 on the Nuclear Non-Proliferation Treaty, and in 
1978 on the Panama Canal Treaties. The Armed Services Committee 
even took a vote on the SALT II Treaty and prepared an 
extensive report in opposition to Senate approval.\15\ In the 
cases of the Treaty on the Elimination of Intermediate-Range 
and Shorter-Range Missiles (INF), the Conventional Armed Forces 
in Europe Treaty (CFE), the Treaty on the Reduction and 
Limitation of Strategic Offensive Arms (START), and the Open 
Skies Treaty, the Armed Services and Intelligence Committees 
reported their findings to the Senate Foreign Relations 
Committee during that committee's consideration of the 
treaties, and the other committees' recommendations were 
included in the reports of the Committee on Foreign 
Relations.\16\ More recently, the Armed Services Committee 
received testimony in 1995 on the national security 
implications of U.S. ratification of the START II Treaty before 
the Foreign Relations Committee reported that treaty to the 
Senate. Similarly, the Armed Services Committee received 
testimony on several occasions in 1997 and 1998 on North 
Atlantic Treaty Organization (NATO) expansion, both before and 
after the Foreign Relations Committee completed action on a 
treaty on that subject.\17\
---------------------------------------------------------------------------
    \13\ Ex. Y, 96-1, 96th Cong., 1st Sess. (June 25, 1979), ordered 
returned to the President without the Senate's approval by S. Res. 267, 
106th Cong., 2d Sess. (2000).
    \14\ Military Implications of the Treaty of the Limitation of 
Strategic Offensive Arms and Protocol Thereto (SALT II Treaty). 
Hearings before the Committee on Armed Services, U.S. Senate. 96th 
Cong., 1st Sess., Four Parts, July-October 1979.
    \15\ U.S. Congress. Senate Committee on Armed Services. Report No. 
96-1054, Military Implications of the Proposed SALT II Treaty relating 
to the National Defense. Report of the Hearings on the Military Aspects 
of the Proposed SALT II Treaty (Ex. Y, 96-1), based on hearings held 
before the committee in accordance with its responsibilities under Rule 
XXV(c) of the Standing Rules of the Senate, together with Additional 
Views. December 4, 1980.
    \16\ U.S. Congress. Senate. Committee on Foreign Relations. INF 
Treaty. Exec. Rept. 100-15, pp. 74-79. CFE Treaty. Exec. Rept. 102-22, 
pp. 124-137. START Treaty. Exec. Rept. 102-53, pp. 73-75. Treaty on 
Open Skies. Exec. Rept. 103-5, pp. 9-10, 115, 140.
    \17\ U.S. Congress. Senate. Committee on Armed Services. 
Legislative Calendar, 104th Cong., S. Prt. 104-74, p. 66; U.S. 
Congress. Senate. Committee on Armed Services. Legislative Calendar, 
105th Cong., S. Prt. 105-92, pp. 67-68.
---------------------------------------------------------------------------
    Other Senate and House committees have occasionally 
prepared reports on treaties of particular concern to them. 
Sometimes the Foreign Relations Committee has invited members 
of other committees to participate in its hearings relating to 
treaties, such as the SALT II Treaty, of obvious interest to 
such committees.

              B. Foreign Relations Committee Consideration

    Once referred to the Foreign Relations Committee, each 
treaty is placed on the committee calendar, in a separate 
treaty section and arranged chronologically in order of 
referral date. Committee Rule 9 governs the committee's 
consideration of treaties. It states:
          (a) The Committee is the only committee of the Senate 
        with jurisdiction to review and report to the Senate on 
        treaties submitted by the President for Senate advice 
        and consent. Because the House of Representatives has 
        no role in the approval of treaties, the Committee is 
        therefore the only congressional committee with 
        responsibility for treaties.
          (b) Once submitted by the President for advice and 
        consent, each treaty is referred to the Committee and 
        remains on its calendar from Congress to Congress until 
        the Committee takes action to report it to the Senate 
        or recommend its return to the President, or until the 
        Committee is discharged of the treaty by the Senate.
          (c) In accordance with Senate Rule XXX.2, treaties 
        which have been reported to the Senate but not acted on 
        before the end of a Congress ``shall be resumed at the 
        commencement of the next Congress as if no proceedings 
        had previously been had thereon.''
          (d) Insofar as possible, the Committee should conduct 
        a public hearing on each treaty as soon as possible 
        after its submission by the President. Except in 
        extraordinary circumstances, treaties reported to the 
        Senate shall be accompanied by a written report.\18\
---------------------------------------------------------------------------
    \18\ U.S. Congress. Senate. Committee on Rules and Administration. 
Authority and Rules of Senate Committees, 1999-2000. Sen. Doc. 106-6. 
106th Cong., 1st Sess., 1999; p. 99.

    The decision to hold hearings or take other action on 
particular treaties ordinarily is made by the committee 
chairman, in consultation with the ranking minority member. The 
chairman's decisions in this regard are influenced to an 
important degree by the preferences of the executive branch. At 
the beginning of each Congress, the committee routinely 
requests from the Department of State a written ranking of its 
treaty priorities, which is normally conveyed in several 
general groupings. Although such requests have no formal status 
or procedural consequences, the committee usually gives great 
weight to them in planning its schedule. Such decisions also 
are affected by the overall priorities and time constraints of 
the chairman and other committee members.
    Committee hearings on treaties principally involve 
executive branch, usually State Department, witnesses. Since 
most treaties are noncontroversial, the objective is to develop 
a record explaining the purposes, provisions, and significance 
of the agreement. When a treaty is controversial or 
complicated, however, the hearing process can be extensive, 
involving many witnesses and days of questioning and 
deliberations. Extensive hearings in recent years have included 
those in 1977-1978 on the Panama Canal Treaties, in 1979 on the 
SALT II Treaty, in 1988 on the INF Treaty, and in 1991-1992 on 
the START Treaty. More recently, the committee held hearings on 
the Chemical Weapons Convention on a total of 14 days.
    The chairman of the Foreign Relations Committee generally 
decides on the timing for committee markup of treaties, which 
normally comes soon after the completion of hearings. The 
predominant tendency is for the committee to recommend Senate 
advice and consent without numerous conditions, and the 
committee usually votes on treaties without extended debate or 
discussion. In the case of a controversial treaty, however, or 
when it is clear that particular problems must be resolved to 
assure Senate approval, the chairman may initiate proposals for 
conditions or other specific language to address those 
problems. The types of conditions available are discussed in 
the following section. Whether or not the committee does decide 
to recommend Senate conditions, when it reports out the treaty 
the committee also proposes a ``resolution of ratification,'' 
usually in the following form:
          Resolved, (two-thirds of the Senators present 
        concurring, therein), That the Senate advise and 
        consent to the ratification of [or accession to] the 
        [official treaty title].

    Generally, treaties are considered within a year of their 
transmission, after allowing sufficient time for public notice 
and comment. From time to time, however, the press of other 
business has resulted in backlogs of unreported treaties. 
Particular treaties may languish on the committee's calendar, 
not necessarily because of serious opposition but for want of 
interested advocates with the time to do justice to them. In 
other cases, treaties have been shepherded through with 
dispatch, owing to their importance and timeliness or to the 
interest of the chairman or particular members of the 
committee. Groups of similar treaties frequently have been 
considered en bloc, both in committee and on the Senate floor, 
thereby facilitating comparison and reducing the demands on 
Senators' time.
    If the chairman does expect opposition or difficulty in 
gaining Senate approval of a particular treaty, his decision on 
the nature and timing of committee action becomes more 
problematic. Furthermore, unless the President is clearly in 
support of ratification (and a successor President may not 
always support all treaties submitted prior to his taking 
office), Senate action may be pointless, since the President 
can simply decline to ratify a treaty even after Senate 
approval.
    All treaties remain on the committee's calendar until the 
committee takes action on them. In accordance with Senate Rule 
XXX, paragraph 2, all treaties reported by the committee that 
are not thereafter disposed of by the Senate (either by 
favorable advice and consent or by formal return to the 
President) rest on the Executive Calendar and then, at the end 
of the Congress, automatically are returned, or re-referred, to 
the committee. The committee must then report those treaties 
again during a subsequent Congress if they are to be considered 
on the Senate floor.
    As a consequence, the calendar of the Foreign Relations 
Committee contains some treaties that were transmitted years 
earlier and never finally disposed of by the Senate. The 
Genocide Convention, for instance, remained on the committee 
calendar from 1949 until 1986, when the Senate finally gave its 
advice and consent to ratification; by that time the committee 
had reported the convention favorably five times. In 1996 the 
committee reported the Chemical Weapons Convention that had 
been referred to it in 1993. The Senate debated but did not 
take final action on the convention in 1996, so it was re-
referred to the committee at the end of the 104th Congress. 
During the following year, the committee held additional 
hearings on the convention. The Senate then considered it 
again, after discharging the committee from its further 
consideration, and ultimately consented to its ratification.
    The workload of the committee and the Senate regarding 
treaties varies from Congress to Congress. In the past four 
Congresses, for example, the number of treaties to which the 
Senate gave its advice and consent grew from 27 in the 103d 
Congress (1993-1994) to 37 in the 104th (1995-1996) to 52 in 
each of the 105th (1997-1998) and 106th (1999-2000) 
Congresses.\19\
---------------------------------------------------------------------------
    \19\ See Appendix 8 for a list of all treaties to which the Senate 
gave its advice and consent to ratification during the 100th-106th 
Congresses. During this period, the chairmen of the committee have been 
Claiborne Pell of Rhode Island (100th-103d Congresses) and Jesse Helms 
of North Carolina (104th-106th Congresses).
---------------------------------------------------------------------------

                        C. Conditional Approval

    The Foreign Relations Committee may recommend that the 
Senate approve treaties conditionally, granting its advice and 
consent only subject to certain stipulations that the President 
must accept before proceeding to ratification.\20\ The 
President, of course, also may propose, at the time of a 
treaty's transmission to the Senate or during the Senate's 
consideration of it, that the Senate attach certain conditions 
or stipulations in the course of giving its advice and consent.
---------------------------------------------------------------------------
    \20\ See American Law Institute, Restatement (Third) of the Foreign 
Relations Law of the United States. American Law Institute Publishers, 
1987, Vol. I, Sec. 314, pp. 186-189. During Senate consideration of 
SALT II, the Foreign Relations Committee gave considerable attention to 
the nature and legal effect of Senate conditions and discussed the 
matter extensively in its report on the treaty. See S. Exec. Rept. 96-
14, 96th Cong., 1st Sess. (Nov. 19, 1979). An earlier discussion of 
these issues with several useful illustrations appears in U.S. 
Congress. Senate. The Role of the Senate in Treaty Ratification, A 
Staff Memorandum to the Committee on Foreign Relations. Committee 
Print. 95th Cong., 1st Sess., November 1977, pp. 3-13.
---------------------------------------------------------------------------

                          types of conditions

    Conditions traditionally have been categorized as 
amendments, reservations, understandings, declarations, and 
provisos. Whatever they are called, however, conditions 
generally are binding on the President, and the President 
cannot proceed to ratify a treaty without giving them effect. 
Because not all conditions necessarily affect the substance of 
a treaty, not all are necessarily communicated to the other 
party or parties to an agreement. But whatever name the Senate 
gives to a condition, if the President considers that it alters 
an international obligation under a treaty, he is expected to 
transmit it to the other party or parties. The result may be 
further negotiations or even abandonment of the treaty.
    Both amendments and reservations are proposed revisions in 
the obligations undertaken by the United States pursuant to a 
treaty. Amendments are proposed changes in the actual text of 
the treaty; reservations are specific qualifications or 
stipulations that modify U.S. obligations without necessarily 
changing treaty language.\21\ Both types of revisions amount, 
therefore, to Senate counter offers that alter the original 
deal agreed to by the United States and the other country or 
countries involved. In the case of treaties that represent 
significant trade-offs and compromises, such conditions 
normally require the re-opening of negotiations, assuming the 
other parties are willing to do so. In less delicate 
circumstances, or on secondary issues, such conditions may be 
accepted without extended delay, although that prospect is not 
always easy to evaluate during Senate committee or floor 
deliberations.
---------------------------------------------------------------------------
    \21\ The Vienna Convention on the Law of Treaties, which the U.S. 
has not ratified but which is viewed as codifying customary 
international law in most respects, defines ``reservation'' as follows:
    ``[R]eservation'' means a unilateral statement, however phrased or 
named, made by a State, when signing, ratifying, accepting, approving, 
or acceding to a treaty, whereby it purports to exclude or to modify 
the legal effect of certain provisions of the treaty in their 
application to that State. Vienna Convention, Article 2.
---------------------------------------------------------------------------
    In the case of large, multilateral agreements, amendments 
seldom are realistic; the difficulties in reconvening 
negotiations mean that significant amendments are normally 
taken by the other parties as tantamount to rejection of the 
treaty itself. Reservations on important provisions of the 
treaty can have the same result.
    The Foreign Relations Committee has repeatedly expressed 
concern with the inclusion of a provision in some multilateral 
treaties stating that no reservations may be made. In the 
committee's view, such a provision has the effect of preventing 
the Senate from exercising its constitutional duty to give 
advice and consent to a treaty, and the committee has asserted 
that its approval of a treaty containing such a provision 
should not be construed as a precedent.\22\
---------------------------------------------------------------------------
    \22\ See, for example, the United Nations Framework Convention on 
Climate Change, Exec. Rept. 102-55 to accompany Treaty Doc. 102-38. 
October 1, 1992, p. 15; and the Protocol on Environmental Protection to 
the Antarctic Treaty, Exec. Rept. 102-54, to accompany Treaty Doc. 102-
22. September 22, 1992. More recently, the Senate has begun to 
incorporate such statements in its resolutions of ratification as well 
as in its reports on treaties containing ``no-reservations'' clauses. 
See, for example, the Convention on Protection of Children and 
Cooperation in Respect of Intercountry Adoption, Exec. Rept. 106-14 to 
accompany Treaty Doc. 105-51. April 27, 2000, p. 11; and 146 
Congressional Record, September 20, 2000, p. S8867 (daily ed.). For 
further discussion of this point, see infra Chapter IX.
---------------------------------------------------------------------------
    In the case of bilateral treaties, there is little 
substantive difference between amendments and reservations, 
although there may be a significant diplomatic difference. (As 
discussed below, there also is a procedural difference in the 
Senate's consideration of amendments and reservations under 
Senate Rule XXX.) While it may be politically easier for the 
other country involved to accept a reservation rather than a 
change in the actual language of the treaty text, the legal 
effect is substantively the same: either form of condition 
amounts to a counter offer.
    Understandings, by contrast, are interpretive statements 
that clarify or elaborate, rather than change, the provisions 
of an agreement and that are deemed to be consistent with the 
obligations imposed by the agreement. The actual effect of any 
particular proposed understanding may, of course, be debatable. 
What may seem to the Senate to be a reasonable interpretation, 
and therefore an understanding, might appear to the other 
country or countries involved to be an important modification, 
and therefore a reservation, particularly if it concerns an 
aspect of the agreement that is considered fundamental. If that 
is the conclusion of another party to a treaty, the mere 
characterization of a condition as an understanding rather than 
a reservation will do little to change that conclusion. True 
understandings are commonly used in the ratification of both 
multilateral and bilateral treaties as a means of clarification 
and reassurance rather than revision.
    Declarations are statements of purpose, policy, or position 
related to matters raised by the treaty in question but not 
altering or limiting any of its provisions. The President has 
on occasion interpreted such declarations as falling outside of 
the formal provisions to be incorporated in the instruments 
used in the ratification process,\23\ and the Senate itself has 
at times so directed.\24\ As a consequence, such statements are 
often placed in a separate section of the Senate's resolution 
of ratification. The term ``declaration'' sometimes is used 
interchangeably with the term ``proviso.''
---------------------------------------------------------------------------
    \23\ In the case of the 1976 Treaty of Friendship and Cooperation 
with Spain, the State Department decided that it was inappropriate to 
include the text of a lengthy Senate declaration in the instruments of 
ratification, because the declaration related in part to the 
encouragement of ``free institutions'' in a ``democratic Spain'' and 
was certain to be offensive to Spain. The Department defended its 
position on this point in a memorandum that appears in the 1976 Digest 
of United States Practice in International Law. Eleanor C. McDowell 
ed., State Department pub. 8908, November 1977, pp. 215-217. A number 
of Senators protested however; and ultimately the declaration was 
included as a separate ``annex'' to the U.S. instrument of 
ratification.
    \24\ See, for example, the resolution of ratification on the 
``Inter-American Convention on Serving Criminal Sentences Abroad,'' 146 
Congressional Record, October 18, 2000, p. S10658 (daily ed.).
---------------------------------------------------------------------------
    Provisos often include conditions relating to the process 
of implementing a treaty within the United States. Among the 
conditions attached to the Senate's resolution of ratification 
of the Convention Against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment, for example, was a proviso, 
specifically not to be included in the instrument of 
ratification, that the President of the United States would not 
deposit the instrument of ratification until such time as he 
had notified all parties that nothing in the convention 
required or authorized legislation, or other action, by the 
United States prohibited by the Constitution as interpreted by 
the United States.\25\
---------------------------------------------------------------------------
    \25\ Treaty Doc. 100-20. See 136 Congressional Record, October 27, 
1990, p. S17492 (daily ed.).
---------------------------------------------------------------------------
    The Senate Committee on Foreign Relations gave considerable 
attention to the types of conditions added to treaties and to 
their legal effect during its consideration of the SALT II 
Treaty in 1979.\26\ The committee included a number of 
declarations, understandings, and reservations in the 
resolution of ratification it recommended to the Senate. But, 
concerned that the traditional labels left some ambiguity 
regarding the legal effect of the proposed conditions, it 
grouped them into the following three categories:
---------------------------------------------------------------------------
    \26\ The committee's concern had been stimulated in part by the 
administration's refusal in 1976 to include a Senate declaration in the 
instruments of ratification of a Treaty of Friendship and Cooperation 
with Spain. See n. 22. In addition, during hearings on the SALT II 
Treaty, former Yale Law School Dean Eugene V. Rostow had expressed the 
view that reservations did not have the same legal effect as amendments 
to the treaty itself. A reservation, he argued, ``has the same effect 
as a letter from my mother.'' Testimony of Eugene Rostow, chairman, 
Executive Committee, Committee on the Present Danger, before the Senate 
Foreign Relations Committee, July 19, 1979, in the SALT II Treaty, 
Hearings before the Committee on Foreign Relations, U.S. Senate, 96th 
Cong., 1st Sess., Part 2, p. 393, and subsequently repeated on 
September 6, 1979, Part 4, p. 13.
---------------------------------------------------------------------------
          (I) conditions that did not need to be formally 
        communicated to, or accepted by, the Soviet Union;
          (II) conditions that did need to be formally 
        communicated to, but not necessarily accepted by, the 
        Soviet Union; and
          (III) conditions that required the explicit agreement 
        of the Soviet Union.\27\
---------------------------------------------------------------------------
    \27\ U.S. Congress. Senate. Committee on Foreign Relations. SALT II 
Treaty. S. Exec. Rept. 96-14, November 19, 1979.

    In addition, the committee obtained the prior agreement of 
the administration to this format. Secretary of State Cyrus 
Vance gave assurances to the committee that
          (1) all conditions would be deemed equally binding on 
        the President regardless of the category in which they 
        were placed;
          (2) category II conditions would be conveyed to the 
        Soviet Union by formal diplomatic note prior to the 
        exchange of the instruments of ratification, thus 
        assuring that the Soviet Union understood the U.S. 
        position in advance of the treaty's entry into force, 
        yet not requiring explicit Soviet approval as in the 
        case of a condition conveyed in the instrument of 
        ratification; and
          (3) the executive branch would follow a procedure for 
        securing Soviet agreement to the provisions in category 
        III that would leave no doubt as to the explicit 
        agreement of the Soviet Union. This would probably be 
        done, the Secretary said, by securing explicit Soviet 
        agreement in the ``Protocol of Exchange of Instruments 
        of Ratification'' that is signed by both parties.\28\
---------------------------------------------------------------------------
    \28\ Id., at 29-32 (exchange of letters between the committee and 
the Secretary of State).

    Because of the Soviet Union's intervention in Afghanistan, 
the Senate never voted on the SALT II Resolution of 
Ratification. But it subsequently used these categories in its 
Resolution of Ratification on the INF Treaty. As noted, these 
categories, when used, have supplemented, not replaced, the 
traditional typology.
    The Committee on Foreign Relations re-emphasized its view 
regarding conditions in its 1985 report on the Genocide 
Convention, asserting that all conditions placed by the Senate 
on its advice and consent were to be included in the instrument 
of ratification unless the Senate expressly stated otherwise. 
The report said:
          Unless there is an express statement by the Senate to 
        the contrary, it is the Committee's firm view that all 
        conditions adopted by the Senate are to be included in 
        the instrument of ratification and therefore furnished 
        to all other parties to the treaty. Not only does the 
        Committee believe this to be the law, but it believes 
        it to be essential for practical reasons as well. The 
        Senate's conditions, together with the treaty and its 
        accompanying documents, describe in full the obligation 
        undertaken by the United States in ratifying the 
        treaty. To insure an identity of expectations by all 
        parties concerning the rights and obligations imposed 
        by the treaty, each party should be accorded formal 
        notice of the Senate's conditions. Notification by any 
        method other than inclusion in the instrument of 
        ratification simply increases the possibility of 
        misunderstanding.\29\
---------------------------------------------------------------------------
    \29\ U.S. Congress. Senate. Committee on Foreign Relations. 
Genocide Convention. S. Exec. Rept. 99-2, July 18, 1985. p. 15.

    More recently, the committee has adopted the practice of 
specifying which conditions are to be included in the 
instrument of ratification and which should not be included. It 
also has specified that particular declarations in its 
resolutions of ratification are binding on the President.\30\
---------------------------------------------------------------------------
    \30\ See, for example, the 33 resolutions of ratification to which 
the Senate gave its advice and consent on October 18, 2000. 146 
Congressional Record, October 18, 2000, pp. S10658-S10667 (daily ed.).
---------------------------------------------------------------------------

               condition regarding treaty interpretation

    In the mid-1980s a controversy erupted that has resulted in 
the inclusion of a condition regarding treaty interpretation in 
every resolution of ratification adopted by the Senate. In the 
early 1980s the Reagan Administration initiated a ``Strategic 
Defense Initiative'' (SDI) to develop new means, including 
mobile- and space-based means, of protecting the United States 
against missile attack. Critics immediately charged that SDI 
would violate the 1972 Anti-Ballistic Missile (ABM) Treaty, 
which barred the United States and the Soviet Union from 
deploying ABM systems (except for one fixed site to protect 
either the nation's capital or an offensive missile complex) 
and from developing, testing, or deploying ``ABM systems which 
are sea-based, air-based, space-based, or mobile land-based.'' 
The administration responded that a broader interpretation of 
the treaty allowed the development and testing of ABM systems 
based on different physical principles than those that existed 
in 1972. It said that the text of the treaty was ``ambiguous'' 
in this respect, that the negotiating record of the treaty 
supported the broader interpretation, that the subsequent 
practice of the parties was consistent with the broader 
interpretation, and that as a consequence the President was 
justified in reinterpreting the treaty to more accurately 
reflect what the negotiating record said it meant.\31\
---------------------------------------------------------------------------
    \31\ For exposition of the administration's legal justifications, 
see Sofaer, Abraham, ``The ABM Treaty and the Strategic Defense 
Initiative,'' 99 Harvard Law Review 1972 (1986) and the testimonies of 
Abraham Sofaer, Legal Adviser to the State Department, and Richard 
Perle, Assistant Secretary of Defense for International Security 
Policy, Joint Hearings on the ABM Treaty and the Constitution Before 
the Senate Committee on Foreign Relations and the Senate Committee on 
the Judiciary (1987), at 119-170 and 351-375.
---------------------------------------------------------------------------
    Usually when the Foreign Relations Committee and the Senate 
consider a treaty, they do not have access to the full 
negotiating record, including all the instructions, 
transcripts, correspondence, and other often voluminous 
material relating to it. Instead, they rely on the testimony 
and other formal communications from the executive branch to 
ascertain a treaty's meaning. But in response to the 
administration's claims regarding the ABM Treaty, the Senate, 
at the initiative of Senators Nunn and Levin, sought and gained 
access to the negotiating record of the ABM Treaty.\32\ The 
Foreign Relations Committee and the Judiciary Committee held 
extensive hearings \33\; and Senator Biden submitted, and the 
Foreign Relations Committee reported, a resolution to constrain 
the administration's ability to reinterpret the ABM Treaty.\34\
---------------------------------------------------------------------------
    \32\ Under an access agreement concluded in February, 1988, the 
State Department supplied the documents, and the Senate created an Arms 
Control Treaty Review Support Office to house and provide a system for 
using the documents. After extended study, Senator Nunn, in detailed 
commentaries on the Senate floor, asserted that this record as well as 
the Senate's ratification hearings and debates and the subsequent 
practices of the parties belied the administration's claim. See 133 
Congressional Record 5296-5302 (March 11, 1987), 5582-5587 (March 12, 
1987), 5688-5690 (March 13, 1987), and 13143-13163 (May 20, 1987).
    \33\ Joint Hearings on the ABM Treaty and the Constitution Before 
the Senate Committee on Foreign Relations and the Senate Committee on 
the Judiciary (1987).
    \34\ S. Res. 167, 100th Cong., 1st Sess. (1987), the ``ABM Treaty 
Interpretation Resolution,'' and S. Rept. 100-164, 100th Cong., 1st 
Sess. (1987).
---------------------------------------------------------------------------
    These actions served as precursors to a condition regarding 
treaty interpretation that was added in 1988 to the resolution 
of ratification on the INF Treaty.\35\ That condition 
articulated what it said were the constitutional principles 
that would govern the future interpretation of the treaty. The 
Foreign Relations Committee explained:
---------------------------------------------------------------------------
    \35\ Because of the administration's claims that the negotiating 
record of the ABM Treaty gave a more accurate indication of its meaning 
than administration testimony to the Senate, the Senate also sought and 
gained access to the negotiating record of the INF Treaty. But in its 
report on the INF Treaty, the Foreign Relations Committee took the 
position that Senate review of negotiating records should not become an 
institutionalized procedure, although reference to the record on a 
case-by-case basis sometimes might be useful. In the committee's view, 
``a systematic expectation of Senate perusal of every key treaty's 
negotiating record'' might inhibit candor during future negotiations 
and impose on the Senate ``a considerable task with no clear purpose.'' 
U.S. Congress. Senate. Committee on Foreign Relations. The INF Treaty. 
Report. S. Exec. Rept. 100-15, 100th Cong., 2d Sess., April 14, 1988, 
p. 100.
---------------------------------------------------------------------------
          Both domestic and international law give primacy in 
        treaty interpretation to the text of the treaty. 
        International law requires that a treaty be interpreted 
        in accordance with the ordinary meaning to be given the 
        treaty's terms in light of their context and in light 
        of the treaty's object and purpose. Domestic law does 
        not differ, and is also premised on the assumption that 
        the Executive and the Senate, as co-makers of the 
        treaty for the United States, will share a common 
        understanding of a treaty's text. As a matter of 
        record, that common understanding of the text will be 
        reflected in the Executive's formal presentation of the 
        treaty to the Senate: in formal presentation documents, 
        in prepared testimony, and in verbal and written 
        intercourse regarding the treaty's meaning and 
        effect.\36\
---------------------------------------------------------------------------
    \36\ Id., p. 97. See also the discussion of the Byrd-Biden 
condition in Chapter VIII.

    The ``Biden condition,'' as subsequently modified on the 
Senate floor by amendments by Senators Byrd and Cohen and 
approved by the Senate on May 26, 1988,\37\ became the first 
condition to the INF Treaty and stated as follows:
---------------------------------------------------------------------------
    \37\ The Senate approved the modified Byrd-Biden condition by a 
vote of 72-27 and the resolution of ratification by a vote of 93-5. 134 
Congressional Record 12655 (May 26, 1988) and 12849 (May 27, 1988), 
respectively.
---------------------------------------------------------------------------
          Provided that the Senate's advice and consent to 
        ratification of the INF Treaty is subject to the 
        condition, based on the treaty clauses of the 
        Constitution, that:
                  (1) the United States shall interpret the 
                Treaty in accordance with the common 
                understanding of the Treaty shared by the 
                President and the Senate at the time the Senate 
                gave advice and consent to ratification;
                  (2) such common understanding is based on:
                          (i) first, the text of the Treaty and 
                        the provisions of this resolution of 
                        ratification; and
                          (ii) second, the authoritative 
                        representations that were provided by 
                        the President, and his representatives 
                        to the Senate and its Committees, in 
                        seeking Senate consent to ratification, 
                        insofar as such representations were 
                        directed to the meaning and legal 
                        effect of the text of the Treaty; and
                  (3) the United States shall not agree to or 
                adopt an interpretation different from that 
                common understanding except pursuant to Senate 
                advice and consent to a subsequent treaty or 
                protocol, or the enactment of a statute; and
                  (4) if, subsequent to ratification of the 
                Treaty, a question arises as to the 
                interpretation of a provision of the Treaty on 
                which no common understanding was reached in 
                accordance with paragraph (2), that provision 
                shall be interpreted in accordance with 
                applicable United States law.\38\
---------------------------------------------------------------------------
    \38\ 134 Congressional Record 12849 (May 27, 1988).

President Reagan protested the inclusion of this condition in 
the Senate's resolution of ratification but, nonetheless, 
proceeded to complete the ratification of the INF Treaty.\39\
---------------------------------------------------------------------------
    \39\ Id. 14261 (June 13, 1988) (Message from the President--
Comments with Respect to Senate Positions on the INF Treaty). It might 
be noted that both the Bush and Clinton Administrations subsequently 
expressed their acceptance of the principles stated in the Byrd-Biden 
condition. See START Treaty, S. Hrg. 102-607, Pt. 1, pp. 506-507; Open 
Skies Treaty, Exec. Rept. 103-5, p. 18.
---------------------------------------------------------------------------
     In the following decade, the Senate incorporated the Byrd-
Biden condition to the INF Treaty by reference in its 
resolutions of ratification on all of the major arms control 
agreements: the CFE Treaty in 1991, START I in 1992, the Open 
Skies Treaties in 1993, the START II Treaty in 1996, and the 
Chemical Weapons Convention and the Flank Document Agreement to 
the CFE Treaty in 1997.\40\ In each instance, however, it 
broadened the condition by affirming its applicability not just 
to the treaty under consideration, as it had with the INF 
Treaty, but to all treaties.
---------------------------------------------------------------------------
    \40\ CFE Treaty. Exec. Rept. 102-22, p. 81; START Treaty. Exec. 
Rept. 102-53, pp. 96, 101-102; Open Skies Treaty, Exec. Rept. 103-5, p. 
16; START II, Exec. Rept. 104-10, p. 46; Chemical Weapons Convention, 
143 Congressional Record, April 24, 1997, p. S3656 (daily ed.); and 
Flank Document Agreement, Exec. Rept. 105-1, pp. 22-24.
---------------------------------------------------------------------------
    The Senate added another dimension to the Byrd-Biden 
condition when it gave its advice and consent to the Flank 
Document Agreement to the CFE Treaty in 1997. The Clinton 
Administration had initially wanted to submit the Flank 
Document to both the House and the Senate and to have it 
approved by majority vote in both bodies as a congressionally-
authorized executive agreement. A legal memorandum from the 
Justice Department had concluded that method of approving an 
amendment to a treaty was lawful, and its argument was based in 
part on subsection (1)(C) of the Byrd-Biden condition.\41\ The 
Senate insisted on its prerogatives, however, and the 
administration eventually submitted the Flank Document to the 
Senate for its advice and consent. But to forestall any similar 
construction of the Byrd-Biden condition in the future, the 
Senate, upon the recommendation of the Foreign Relations 
Committee, added the following language to the condition in its 
resolution of ratification on the Flank Document:
---------------------------------------------------------------------------
    \41\ Office of Legal Counsel, Department of Justice, ``Validity of 
Congressional-Executive Agreements That Substantially Modify the United 
States' Obligations Under an Existing Treaty'' (November 25, 1996). The 
memorandum stated in part:
    Finally, in its Resolution of Advice and Consent of 27 May 1988 to 
the U.S.-U.S.S.R. Treaty on the Elimination of Their Intermediate-Range 
and Shorter-Range Missiles (INF Treaty), the Senate adopted the ``Biden 
condition,'' which provides that ``the United States shall interpret 
the Treaty in accordance with the common understanding of the Treaty 
shared by the President and the Senate at the time the Senate gave its 
advice and consent to ratification,'' and that ``the United States 
shall not agree to or adopt an interpretation different from that 
common understanding except pursuant to Senate advice and consent to a 
subsequent treaty or protocol, or the enactment of a statute.'' 134 
Congressional Record 12,849 (1988) (emphasis added). The Senate 
affirmed ``the applicability to all treaties of the constitutionally-
based principles'' in this condition. Resolution of Advice and Consent 
of 25 November 1991 to the Treaty on Conventional Armed Forces in 
Europe (CFE Treaty), 137 Congressional Record, November 23, 1991, pp. 
S17,845, S17,846 (daily ed.), adopted id. at S18,038 (daily ed. Nov. 
25, 1991). Because the Senate took the view that such ``common 
understandings'' of a treaty had the same binding effect as express 
provisions of the treaty for purposes of U.S. law, the Biden condition 
logically supports the proposition that the President may be authorized 
to accept changes in treaty obligations either by further Senate advice 
and consent or by statutory enactment.
---------------------------------------------------------------------------
          (8) Nothing in condition (1) of the resolution of 
        ratification of the INF Treaty, approved by the Senate 
        on May 27, 1988, shall be construed as authorizing the 
        President to obtain legislative approval for 
        modifications or amendments to treaties through 
        majority approval of both Houses.\42\
---------------------------------------------------------------------------
    \42\ 143 Congressional Record, May 14, 1997, p. S4477 (daily ed.).

     Subsequent to that dispute, the Senate has included the 
Byrd-Biden condition, as modified, as a declaration not only in 
its resolutions of ratification on arms control agreements but 
also those on every other treaty it has considered, regardless 
of its subject matter. The condition now is commonly worded as 
follows:
          DECLARATION.--The Senate's advice and consent is 
        subject to the following declaration, which shall be 
        binding upon the President:
                  TREATY INTERPRETATION.--The Senate affirms 
                the applicability to all treaties of the 
                constitutionally based principles of treaty 
                interpretation set forth in Condition (1) of 
                the resolution of ratification of the INF 
                Treaty, approved by the Senate on May 27, 1988, 
                and Condition (8) of the resolution of 
                ratification of the Document Agreed Among the 
                States Parties to the Treaty on Conventional 
                Armed Forces in Europe, approved by the Senate 
                on May 14, 1997.

           condition regarding supremacy of the constitution

     Since the beginning of the 105th Congress in 1997, the 
Senate has routinely included a second condition as well in all 
of its resolutions of ratification. That condition, commonly in 
the form of a proviso, states as follows:
          SUPREMACY OF THE CONSTITUTION.--Nothing in this 
        Treaty requires or authorizes legislation or other 
        action by the United States of America that is 
        prohibited by the Constitution of the United States as 
        interpreted by the United States.

 This condition was first included in the Senate's resolution 
of ratification on the Genocide Convention in 1986. In 
subsequent Congresses the Senate gradually extended its use of 
the condition, first to other human rights treaties and then to 
treaties on narcotics, mutual legal assistance, and 
extradition. In its current form, the proviso sometimes states 
that it is ``binding on the President,'' and sometimes that it 
is ``not [to] be included in the instrument of ratification to 
be signed by the President.'' Sometimes the proviso includes 
both phrases, and sometimes it includes neither.
     Both the merits and the form of the condition have been 
matters of controversy in the Senate. On May 21, 1985, the 
Foreign Relations Committee approved the condition for the 
first time, 9-8, as one of several conditions proposed by 
Senators Helms and Lugar to the Genocide Convention.\43\ The 
committee's report explained that the condition, at that time 
in the form of a reservation to the convention, was desirable 
as a matter of prudence because of ambiguities in some of the 
provisions of the Genocide Convention. It noted that the 
Supreme Court had held the Constitution to be supreme over 
treaties as a matter of domestic law \44\; but, it said, 
international law did not allow ``internal law'' to justify a 
failure to perform the obligations imposed by a treaty. Thus, 
the committee stated, ``[if] a conflict were to arise between 
the requirements of the Constitution and those of the 
Convention, the United States might be found to be in default 
of its international obligation.'' \45\ Two ambiguities in the 
convention were of particular concern, it said. First, it 
stated, it was not clear whether the language directing parties 
to enact legislation to implement the convention ``in 
accordance with their respective Constitutions'' was solely 
procedural or applied to the substance of the legislation as 
well. Second, the committee report commented that there was a 
possible conflict between the free speech clause of the first 
amendment and the convention's requirement that ``direct and 
public incitement to commit genocide'' be punished. The 
committee concluded:
---------------------------------------------------------------------------
    \43\ S. Exec. Rept. 99-2, 99th Cong., 1st Sess. (July 18, 1985), at 
4.
    \44\ Reid v. Covert, 354 U.S. 1 (1957).
    \45\ S. Exec. Rept. 99-2, supra, at 20.
---------------------------------------------------------------------------
          The Committee reservation may never be invoked. 
        Article V may be interpreted to apply to substance as 
        well as form. The other articles may never be construed 
        in a way inconsistent with the U.S. Constitution. 
        Nonetheless, the Committee believes that prudence, as 
        well as due regard for the obligations imposed by 
        international law, recommends the reservation.\46\
---------------------------------------------------------------------------
    \46\ Id. at 21.

     Eight Senators filed ``additional views'' criticizing the 
inclusion of this reservation, however.\47\ First, they 
asserted, ``36 years of detailed legal analysis'' of the 
convention had produced no ``credible contention'' that it was, 
or could be, in conflict with the Constitution. Second, they 
noted that the Supreme Court had repeatedly held the 
Constitution to be supreme over a treaty. Third, they said, it 
created a lack of certitude about the intent of the United 
States to fulfil its obligations under the convention and was 
``disturbing to our allies who have undertaken an unqualified 
acceptance of the treaty's obligations.'' Fourth, they stated 
that the self-serving nature of the reservation suggested that 
the United States ``was not ratifying the * * * Convention in 
good faith.'' Fifth, they claimed, it invited other nations 
``that can easily change their constitutions'' to adopt a 
similar reservation and thus could create major problems in 
enforcing the treaty's obligations. The eight Senators 
concluded:
---------------------------------------------------------------------------
    \47\ Id. at 28-31.
---------------------------------------------------------------------------
          This reservation * * * will seriously compromise the 
        political and moral prestige the United States can 
        otherwise attain in the world community by unqualified 
        ratification of the Genocide Convention. It will hand 
        our adversaries a propaganda tool to use against the 
        United States and invite other nations to attach 
        similar self-judging reservations that could be used to 
        undermine treaty commitments.

 Nonetheless, the reservation remained part of the resolution 
of ratification as approved by the Senate, 83-11, on February 
19, 1986.
     In the 101st Congress the Senate attached the condition 
not only to its resolution of ratification on another human 
rights treaty but also to six mutual legal assistance treaties 
(MLATs) as well as a narcotics convention. The merits of the 
condition continued to be debated, but a consensus gradually 
developed around its form.
     Initially, the Committee on Foreign Relations rejected, by 
votes of 2-15, Senator Helms' proposal to include a 
constitutional supremacy condition as a reservation in the 
resolutions of ratification on six mutual legal assistance 
treaties.\48\ The committee majority and Senator Helms 
articulated their conflicting views on the merits of the 
condition in the committee's reports on the treaties.\49\ But 
on the floor the Senate agreed to a compromise. The compromise 
deleted the words ``as interpreted by the United States'' and 
provided that the condition would be included in the 
instruments of ratification on each treaty as an understanding 
rather than as a reservation. This meant that the other parties 
to the treaties would not have to expressly accept the 
condition in their own ratification processes. As modified, the 
Senate approved the condition by voice vote and then, after one 
other modification, approved the resolutions of ratification on 
the six treaties by votes of 99-0.\50\
---------------------------------------------------------------------------
    \48\ The treaties were with Great Britain (with respect to the 
Cayman Islands), Mexico, Canada, Belgium, the Bahamas, and Thailand See 
Treaty Docs. 100-8 (Aug. 4, 1987), 100-13 (Feb. 16, 1988), 100-14 (Feb. 
22, 1988), 100-16 (March 29, 1988), 100-17 (April 13, 1988), 100-18 
(April 25, 1988), respectively.
    \49\ See S. Exec. Repts. 101-9, 101-10, 101-11, 101-12,101-13, and 
101-8, respectively, all reported on July 31, 1989. (The committee also 
had reported the treaties late in the second session of the 100th 
Congress and had, similarly, rejected Senator Helms' proposal at that 
time. See S. Exec. Rept. 100-26 (Sept. 30, 1988).) In each report the 
majority asserted that the reservation was ``unnecessary'' both because 
the Supreme Court had repeatedly held the Constitution to be supreme 
over treaties and because none of the MLATs authorized or required 
legislation or other action prohibited by the Constitution; that such a 
reservation might lead some ``treaty partners'' to reject the treaties 
or to insist on a reciprocal reservation that could ``limit the 
usefulness of the treaty''; that it would invite defendants and targets 
of investigation ``to interpose specious challenges to MLAT requests'' 
by claiming that their government's investigative methods did not 
comport with our constitutional requirements; that a decade of 
experience under several existing MLATs had not exposed any conflicts 
with our Constitution; and that, unlike the Genocide Convention, the 
MLATs addressed only procedural matters and not the substance of crimes 
for which U.S. citizens might be tried. In ``Additional Views'' in each 
report, Senator Helms argued in response that ``the essential reason 
for such a proviso is the still unanswered question of whether the 
Constitution supersedes a treaty or whether a treaty can be held to be 
of equal force to the Constitution with respect to its provisions.'' 
Court decisions concerning the supremacy of the Constitution over 
treaties, he contended, remained ambiguous and inconclusive. Senator 
Helms also asserted that without the reservation the MLATS would allow 
foreign governments, ``some of which are corrupt,'' to obtain evidence 
on U.S. citizens in the U.S. without necessarily abiding by the 
constitutional requirements that apply to U.S. investigations and ``to 
seek U.S. evidence relating to persons in their own countries just to 
see how much we know''; that the administration's arguments to the 
contrary lacked cogency; and that the MLATs without the reservation 
threatened ``a full scale assault against American liberties.''
    \50\ 135 Congressional Record 25633 and 25637 (October 24, 1989).
---------------------------------------------------------------------------
     In the following month, the Foreign Relations Committee 
reported, and the Senate approved, a resolution of ratification 
on the United Nations Convention Against Illicit Traffic in 
Narcotic Drugs and Psychotropic Substances.\51\ One article of 
the convention obligated the parties to provide mutual legal 
assistance with respect to certain narcotics offenses. Senator 
Helms, as a consequence, proposed that the same understanding 
be added as was added to the previously adopted MLATs. But his 
proposal altered the form of the condition in one respect; it 
specified that the understanding not be included in the 
instruments of ratification on the convention. The committee 
adopted his proposal, along with two other understandings \52\; 
and the Senate approved the resolution of ratification on 
November 21, 1989.\53\
---------------------------------------------------------------------------
    \51\ Treaty Doc. 101-4 (May 20, 1989).
    \52\ S. Exec. Rept. 101-15 (Nov. 14, 1989), pp. 10-11 and 115.
    \53\ 135 Congressional Record 31383 (Nov. 21, 1989).
---------------------------------------------------------------------------
     Finally, the Senate in the 101st Congress further modified 
the form of the constitutional supremacy condition in its 
resolution of ratification on the Convention Against Torture 
and Other Cruel, Inhuman or Degrading Treatment or 
Punishment.\54\ The condition was not formally offered during 
the deliberations of the Senate Committee on Foreign Relations, 
because the minority members were all absent. Nonetheless, the 
committee report articulated the majority's objections to such 
a condition, while the minority members vigorously protested 
their exclusion from the committee's deliberations.\55\ Once 
again, however, a compromise was developed that forestalled a 
contentious floor debate. Although still objecting to the 
condition as unnecessary, the Bush Administration, the chair of 
the committee, Senator Pell, and Senator Helms agreed to add 
four conditions to the resolution of ratification. In this 
compromise the constitutional supremacy condition was stated to 
be a ``proviso, which shall not be included in the instrument 
of ratification to be deposited by the President'' but which 
would be notified to the other parties. It was worded as 
follows:
---------------------------------------------------------------------------
    \54\ Tr. Doc. 100-20, 100th Cong., 2d Sess. (May 23, 1988).
    \55\ S. Exec. Rept. 101-30, 101st Cong., 2d Sess. (Aug. 30, 1990), 
pp. 4-5. Most of the majority's arguments reiterated the concerns that 
had been expressed previously. But the report also asserted that the 
inclusion of the condition in the instruments of ratification on the 
Genocide Convention and the six MLATs had proven ``problematic.'' 
Twelve Western European nations, it said, had filed written objections 
to the reservation on the Genocide Convention, and four of the six 
states with which the MLATs had been negotiated, it stated, had 
``voiced strong concerns about the proviso and/or have taken similar 
reciprocal provisos.''
---------------------------------------------------------------------------
          The President of the United States shall not deposit 
        the instrument of ratification until such time as he 
        has notified all present and prospective ratifying 
        parties to this Convention that nothing in this 
        Convention requires or authorizes legislation, or other 
        action, by the United States of America prohibited by 
        the Constitution of the United States as interpreted by 
        the United States.

     During the floor debate Senator Pell observed that the 
condition was not a reservation and, thus, neither altered the 
obligations of the United States under the convention nor 
allowed other parties to invoke it on a reciprocal basis as a 
means of limiting their own obligations. Senator Helms, terming 
the condition a ``sovereignty proviso,'' reiterated his concern 
that ``other countries be put on notice that our Constitution 
is the supreme law of the land, a law which can never be 
invalidated or modified in any degree by an international 
obligation.'' Although several other Senators expressed 
objections to the proviso, the Senate approved the package of 
conditions and the convention by division votes.\56\
---------------------------------------------------------------------------
    \56\ 136 Congressional Record 36196 and 36198 (October 27, 1990).
---------------------------------------------------------------------------
     In the 102d Congress the proviso gained its current form. 
During the Senate Foreign Relations Committee's consideration 
of another human rights treaty, the International Covenant on 
Civil and Political Rights,\57\ Senator Helms proposed that the 
constitutional supremacy condition be included as a proviso to 
the resolution of ratification and that it state that it 
``shall not be included in the instrument of ratification to be 
deposited by the President.'' The committee adopted the 
proposal by voice vote and explained the proviso in its report 
as follows:
---------------------------------------------------------------------------
    \57\ Ex. E, 95-2, 95th Cong., 2d Sess. (Feb. 23, 1978).
---------------------------------------------------------------------------
          The substantive language of the proviso reflects the 
        Administration's position on the relationship between 
        treaties and the Constitution. Since this relationship 
        is a matter of domestic U.S. law, the proviso is not 
        included in the instrument of ratification. This 
        approach eliminates the potential for confusion at the 
        international level about the nature of the U.S. 
        ratification.\58\
---------------------------------------------------------------------------
    \58\ Id. at 5.

 The proviso elicited no comment in the brief Senate floor 
debate, and the Senate approved the resolution of ratification 
on the covenant by division vote on April 2, 1992.\59\
---------------------------------------------------------------------------
    \59\ 138 Congressional Record 8071 (April 2, 1992).
---------------------------------------------------------------------------
     At Senator Helms' initiative, the committee also approved 
the addition of the same proviso to the resolutions of 
ratification on four mutual legal assistance treaties during 
the 102d Congress \60\; and the Senate, without comment on the 
proviso, approved the resolutions.\61\ In the 103d Congress the 
committee accepted the same proviso as part of the resolution 
of ratification on another human rights treaty, the 
International Convention on the Elimination of All Forms of 
Racial Discrimination \62\; and the Senate, on June 24, 1994, 
again concurred.\63\ In the 104th Congress, the Senate included 
the proviso in its resolutions of ratification on six 
additional MLATs \64\ and also extended its use by applying it 
to seven resolutions relating to extradition treaties.\65\ With 
party control of the Senate having changed, the proviso was 
included in the resolutions of ratification recommended by the 
Foreign Relations Committee without the necessity of amendment, 
either in committee or on the floor. Neither the committee's 
reports or the brief floor debates on either the MLATs or the 
extradition treaties offered any novel comments on, or 
objections to, the proviso.\66\
---------------------------------------------------------------------------
    \60\ The MLATs were with Jamaica, Argentina, Uruguay, and Spain. 
See Treaty Docs. 102-16 (Oct. 25, 1991), 102-18 (Oct. 31, 1991), 102-19 
(Nov. 13, 1991), and 102-21 (Jan. 22, 1992), respectively. The 
committee's reports on these MLATs stated, incorrectly, that the 
proviso was ``identical to understandings approved by the Senate'' with 
respect to the MLATs with the Bahamas, Belgium, Canada, and Mexico in 
1989. See Exec. Repts. 102-32 (May 21, 1992), at 4; 102-33 (May 21, 
1992), at 3-4; 102-34 (May 21, 1992), at 4; and 102-35 (May 21, 1992), 
at 3-4.
    \61\ 138 Congressional Record 17964-65 (July 2, 1992).
    \62\ Exec. C, 95-2, 95th Cong., 2d Sess. (Feb. 23, 1978). In its 
report the committee reiterated the comment it had made previously with 
respect to the International Covenant on Civil and Political Rights: 
``The substantive language of the proviso reflects the Administration's 
position on the relationship between treaties and the U.S. 
Constitution. Since this relationship is a matter of domestic U.S. law, 
the proviso will not be included in the instrument of ratification. The 
Committee agrees with the Administration that this approach eliminates 
the potential for confusion at the international level about the nature 
of the U.S. ratification.'' See S. Exec. Rept. 103-29, 103d Cong., 2d 
Sess. (June 2, 1994), at 4.
    \63\ 140 Congressional Record, June 24, 1994, p. S7634 (daily ed.).
    \64\ The MLATs were with Panama, Austria, Hungary, the Philippines, 
Great Britain, and Korea. See Treaty Docs. 102-15 (Oct. 24, 1991), 104-
21 (Sept. 7, 1995), 104-20 (Sept. 6, 1995), 104-18 (Sept. 5, 1995), 
104-2 (July 30, 1996), and 104-22 (July 30, 1996), respectively.
    \65\ The extradition treaties were with Malaysia, Bolivia, the 
Philippines, Switzerland, Belgium (both a treaty and a supplemental 
treaty), and Hungary. See Treaty Docs. 104-26 (May 17, 1996), 104-22 
(Oct. 10, 1995), 104-16 (Sept. 5, 1995), 104-9 (June 12, 1995), 104-7 
and 104-8 (July 12, 1995), and 104-5, respectively.
    \66\ The reports on the MLATS were, respectively, for Panama, S. 
Exec. Rept. 104-3 (May 5, 1995); for Austria, S. Exec. Rept. 104-24 
(July 30, 1996); for Hungary, S. Exec. Rept. 104-25 (July 30, 1996); 
for the Philippines, S. Exec. Rept. 104-26 (July 30, 1996); for Great 
Britain, S. Exec. Rept. 104-23 (July 30, 1996) and for Korea, S. Exec. 
Rept. 104-22 (July 30, 1996). The reports on the extradition treaties, 
all of which were issued on July 30, 1996, were, for Malaysia, S. Exec. 
Rept. 104-30; for Bolivia, S. Exec. Rept. 104-31; for the Philippines, 
S. Exec. Rept. 104-29; for Switzerland, S. Exec. Rept. 104-32; for 
Belgium, S. Exec. Rept. 104-28; and for Hungary, S. Exec. Rept. 104-27. 
The Senate approved the Panama MLAT on May 16, 1995 (141 Congressional 
Record S 6764) and the rest of the MLATs and all of the extradition 
treaties as a package on August 2, 1996 (142 Congressional Record S 
9661-62) by division votes, without substantive debate. With the 
exception of the committee's report on the MLAT with Panama, the 
reports all stated: ``Bilateral (MLATs/extradition treaties) rely on 
relationships between sovereign countries with unique legal systems. In 
as much as U.S. law is based on the Constitution, this treaty may not 
require legislation prohibited by the Constitution.''
---------------------------------------------------------------------------
     As noted above, since the beginning of the 105th Congress, 
the committee and the Senate have included the condition as a 
proviso in its resolutions of ratification on virtually all 
treaties.\67\
---------------------------------------------------------------------------
    \67\ The 105th and 106th Congresses approved a total of 104 
treaties on such diverse subjects as mutual legal assistance, 
extradition, child labor, taxes, copyright, airline liability, bribery, 
trademarks, plant patents, maritime boundaries, migratory birds, arms 
control, conservation, and adoption. The one treaty approved in the 
106th Congress that did not include the proviso was the Convention on 
Nuclear Safety. Treaty Doc. 104-6 (May 11, 1995); S. Exec. Rept. 105-1 
(March 24, 1999); 145 Congressional Record, March 25, 1999, pp. S3573-
S3577 (daily ed.).
---------------------------------------------------------------------------

                     D. Resolution of Ratification

     When the committee reports a treaty to the Senate, it does 
so with a proposed resolution of ratification. Proposed 
conditions usually are incorporated as provisions of this 
resolution. By contrast, any amendments to the text of the 
treaty, which seldom are proposed, are reported as freestanding 
proposals for the Senate to consider. Technically, neither the 
committee nor the Senate actually amends the text of a treaty; 
rather, the Senate identifies those amendments that would be 
necessary to gain its favorable advice and consent. However, 
the committee initially and the Senate subsequently can amend 
the resolution of ratification. A hypothetical resolution of 
ratification containing each type of condition described above 
would take the following form:
          Resolved (two-thirds of the Senators present 
        concurring therein), That the Senate advise and consent 
        to the ratification of [official treaty title], subject 
        to the following:
          (1) reservation that * * *
          (2) understanding that * * *
          (3) declaration that * * *
        and provided that:
                  (a) * * *
                  (b) * * *

 The conditions included in the last clause are those referred 
to as provisos.

                        E. Senate Floor Procedure

                           executive session

     Once a treaty is reported from the Foreign Relations 
Committee and placed on the Senate's Executive Calendar, it 
must lie over for 1 calendar day before second reading and 
Senate consideration, unless the Senate agrees by unanimous 
consent to waive this requirement. The Majority Leader may 
begin the process of consideration by making a motion to go 
into executive session, as distinguished from legislative 
session, to consider a particular treaty. This motion takes 
precedence over most other motions; it is neither amendable nor 
debatable, but it may be the subject of a roll call vote. 
However, the most common procedure in recent years is for the 
Majority Leader to obtain in advance a unanimous consent 
agreement providing for the Senate to begin consideration of a 
treaty in executive session at a particular day and time.
     Until recently, the Senate's procedures encouraged it to 
consider treaties and nominations in the order in which they 
appeared on the Executive Calendar--that is, the order in which 
they were reported from committee. The Senate would agree to a 
motion that provided only that the Senate go into executive 
session. Once in executive session, the Senate was required to 
take up the first item on the Executive Calendar, whether it 
was a treaty or a nomination, unless it decided otherwise by 
unanimous consent or by motion. The motion to take up a treaty 
out of its order on the Executive Calendar was debatable in 
executive session, and therefore was subject to being 
filibustered. This procedural hurdle to taking up items of 
executive business out of their order on the calendar 
occasionally had consequences for the fate of various 
agreements. The Threshold Test Ban and Peaceful Nuclear 
Explosions Treaties, for example, were ordered reported by the 
Foreign Relations Committee in 1977 but then were recalled, in 
part so as not to be placed on the Executive Calendar ahead of 
the controversial Panama Canal Treaties.\68\ In the following 
year, the Senate rejected an effort to reverse the order in 
which the Senate would consider the two Canal Treaties 
themselves.\69\
---------------------------------------------------------------------------
    \68\ Confirmed in unpublished committee transcripts.
    \69\ On February 22, 1978, by a vote of 67-30, the Senate rejected 
a motion to reverse the order of consideration of the Canal Treaty and 
the Neutrality Treaty.
---------------------------------------------------------------------------
     Since that time, however, the Senate has established the 
precedent that a non-debatable motion to go into executive 
session can provide for the Senate to proceed directly to the 
consideration of any particular item on the Executive Calendar. 
This precedent enables the Senate to agree to a motion, most 
likely made by the Majority Leader, to take up a specific 
treaty that is on the Executive Calendar and that has satisfied 
the layover requirement of Rule XXX.

                       non-controversial treaties

     Once the Senate agrees to take up a treaty, its 
consideration is governed by Senate Rule XXX. The Senate's 
usual practice, however, has been to waive some of the 
procedural requirements of this rule, including the second 
reading of a treaty and consideration of amendments to the 
treaty itself. Instead, the Senate proceeds directly to 
consideration of the resolution of ratification as reported by 
the Foreign Relations Committee. To this end, the Majority 
Leader may ask and obtain unanimous consent that the treaty be 
considered as having passed through all the parliamentary 
stages up to and including presentation of the resolution of 
ratification. Alternatively, there first may be some debate on 
the treaty before the Presiding Officer proposes that the 
Senate turn to the resolution of ratification. The procedure 
followed may resemble the following:
          The PRESIDING OFFICER. The Clerk will report the 
        treaty by title for the information of the Senate.

          [After the Clerk reports the treaty by title, if no 
        one seeks recognition, or after the debate of the 
        treaty has been concluded, and if no one offers an 
        amendment, the Chair takes the initiative and makes the 
        following statement:]
          The PRESIDING OFFICER. The treaty will be considered 
        as having passed through its various parliamentary 
        stages up to and including the presentation of the 
        resolution of ratification, which the Clerk will 
        report.

          [After the Clerk reads the resolution, the Chair 
        should properly state:]
          The PRESIDING OFFICER. Reservations to the resolution 
        of ratification are now in order. If there be no 
        reservations or understandings to be offered to the 
        resolution of ratification, the question is on the 
        adoption of the resolution of ratification.

          [If the yeas and nays have been ordered, the Chair 
        states:]
          The PRESIDING OFFICER. The yeas and nays have been 
        ordered on this question and the Clerk will call the 
        roll.

          [After the roll call vote has been taken and the 
        Clerk gives the tabulation to the Presiding Officer, 
        the Chair states:]
          The PRESIDING OFFICER. On this vote the yeas 
        are______; the nays are______. Two-thirds of the 
        Senators present (a quorum being present) having voted 
        in the affirmative, the resolution of ratification is 
        agreed to.

                                   OR

          On this vote the yeas are______; the nays are______. 
        Two-thirds of the Senators present (a quorum being 
        present) not having voted in the affirmative, the 
        resolution of ratification is not agreed to.

          [After the Chair announces the results on the 
        resolution of ratification, the following action by 
        unanimous consent usually occurs:]
          A SENATOR (usually the Majority Leader or someone 
        acting for him). Mr. President, I ask unanimous consent 
        that the President be immediately notified of the 
        Senate's consent (disapproval) to the resolution of 
        ratification.
          The PRESIDING OFFICER. Without objection, it is so 
        ordered.\70\
---------------------------------------------------------------------------
    \70\ Riddick, Floyd M. and Alan S. Frumin. Riddick's Senate 
Procedure. Sen. Doc. 101-28, 1992. pp. 1557-1558.
---------------------------------------------------------------------------

                         controversial treaties

     The opponents of a treaty may object to setting aside the 
procedures of Rule XXX by unanimous consent and proceeding 
directly to consideration of the resolution of ratification. In 
1978, for example, the late Senator James Allen, of Alabama, 
refused to agree to abbreviating the Senate's procedures for 
considering the Panama Canal Treaties. The procedures of Rule 
XXX govern the Senate unless there is unanimous consent to 
modify them or set them aside. Before 1986 these procedures 
were more complicated than they are today because Rule XXX then 
required that the Senate first consider treaties on the floor 
``as in Committee of the Whole.'' \71\ In 1986, soon after 
approval of the Genocide Convention, Rule XXX was amended to 
eliminate this requirement.\72\
---------------------------------------------------------------------------
    \71\ The Committee of the Whole is a parliamentary device by which 
the entire membership of a legislative body sits as a single committee 
to consider a matter and then makes its recommendations to the body in 
the same way that a standing committee would.
    \72\ Rule XXX was amended as part of S. Res. 28, 99th Cong., 2d 
Sess., February 27, 1986.
---------------------------------------------------------------------------
     When the Senate begins considering a treaty under the 
current Rule XXX procedure, the treaty is to be read for a 
second time. This reading is to be in full and it can be waived 
only by unanimous consent. The text of the treaty itself then 
is open to amendment, although the first hours or days of 
consideration may be devoted to speeches only, either by 
informal arrangement or by a formal unanimous consent 
agreement. If the Foreign Relations Committee has recommended 
any amendments to the treaty, they are the first amendments to 
be considered, and each committee amendment is subject to 
second degree amendments while it is pending. Reservations, 
understandings, and other such statements may not be offered to 
the treaty, nor may they be offered to the resolution of 
ratification while the treaty itself is before the Senate.
     A motion to consider the treaty in secret (``with closed 
doors'') may be made at any time by any Senator and requires 
only a second. Once this motion is made and seconded, in 
accordance with Senate Rule XXI, the Presiding Officer directs 
the galleries to be cleared and the Senate continues its 
business behind closed doors. ``A closed session, under Rule 
XXI, can be invoked simply by a motion and a second, and the 
question is not debatable. Once the Senate goes into closed 
session, it may then determine whether it stays in closed 
session * * *. When in closed session, a motion to return to 
open session is in order and not debatable.'' \73\ On March 29, 
1988, for example, the Senate went into closed session to 
discuss issues raised by the INF Treaty on the day before it 
was ordered reported by the Foreign Relations Committee.\74\
---------------------------------------------------------------------------
    \73\ Riddick, Floyd M. and Alan S. Frumin, Riddick's Senate 
Procedure. Sen. Doc. 101-28, 1992. pp. 278, 280.
    \74\ Congressional Record, March 29, 1988, p. S3204 (daily ed.).
---------------------------------------------------------------------------
     The INF Treaty is an example of a treaty considered under 
the Rule XXX procedures since the rule was amended in 1986. In 
considering that treaty, Majority Leader Robert Byrd, on May 
17, 1988, secured unanimous consent that the second reading 
proceed through the signatures of the parties, at which time 
the Senate would dispense with the reading temporarily. After 
debate, Senator Jesse Helms asked unanimous consent that 
further reading of the attached protocols be suspended, subject 
to the demand of any Senator that the reading of them be 
resumed. Later, further reading was dispensed with.\75\ The 
Senate then voted on and tabled (rejected) an amendment to the 
treaty itself that was offered by Senator Steve Symms; other 
proposed amendments to the treaty were tabled or withdrawn. 
After the Senate proceeded to the consideration of the 
resolution of ratification, it adopted various amendments to 
the resolution as proposed by the Foreign Relations Committee, 
and then agreed to the resolution, as amended, by the required 
two-thirds majority.
---------------------------------------------------------------------------
    \75\ Congressional Record, May 18, 1988, p. S6084 (daily ed.).
---------------------------------------------------------------------------
     It is unusual today for Senators to propose amendments to 
the text of a treaty. Instead, they typically formulate their 
proposals in the form of conditions that they offer as 
amendments to the resolution of ratification. Under Rule XXX, 
after debate on the treaty itself, the next step is for the 
Senate to consider this resolution. If the Senate has agreed to 
any amendments to the text of the treaty, they are incorporated 
in the resolution of ratification, not in the treaty itself. 
The resolution states, in effect, that the Senate gives its 
advice and consent to the ratification of the treaty on the 
condition that the parties to the treaty accept the amendments 
proposed by the Senate and listed in the resolution. Once the 
resolution of ratification is laid before the Senate, no 
further amendments to the text of the treaty may be proposed, 
except by unanimous consent.
    Under Rule XXX, the Senate is not to begin considering the 
resolution of ratification on the same day it completes debate 
on the treaty itself and disposes of any amendments to it, 
unless the Senate by unanimous consent determines otherwise. 
The resolution is prepared by the Executive Clerk and, when 
presented to the Senate, includes any amendments to the text of 
the treaty that the Senate has adopted as well as the texts of 
any conditions recommended by the Committee on Foreign 
Relations. As noted above, the committee now routinely proposes 
at least two conditions, but at times it also has recommended 
multiple conditions of different types. In March 1999, for 
example, the committee reported protocols to the 1980 
Conventional Weapons Convention with 1 reservation, 9 
understandings, and 13 conditions. In July 2000, it reported 
the Inter-American Convention on Sea Turtles with three 
understandings, five declarations, and two provisos.
     The conditions recommended by the Committee on Foreign 
Relations are the first to be considered when the Senate takes 
up the resolution of ratification. Each condition that the 
committee has proposed is debatable and amendable. After the 
Senate acts on the committee's recommended conditions, 
individual Senators can propose their own conditions, which are 
also debatable and amendable.
     The resolution of ratification, like a bill the Senate 
considers in legislative session, is subject to amendment in 
two degrees. Each condition that the committee recommends or 
that a Senator offers is a first degree amendment to the 
resolution and is amendable in the second degree, subject to 
the Senate's established precedents governing the amendment 
process on the floor. It also is in order to offer an amendment 
in the nature of a substitute that proposes to replace the 
entire text of the resolution. Such a complete substitute can 
propose that the Senate withhold its advice and consent. During 
consideration of the resolution of ratification for the second 
Panama Canal Treaty, for example, the Senate considered and 
rejected a substitute proposing that the treaty be returned to 
the President with the advice that negotiations be re-opened 
with the Government of Panama. If the Senate had agreed to this 
substitute, it would have nullified the proposed amendments to 
the treaty to which the Senate already had agreed.
     At any time that the resolution of ratification is before 
the Senate, a motion to recommit the resolution to committee 
may be offered. As with any motion to recommit, the motion may 
be coupled with instructions to the committee, and those 
instructions (such as instructions directing the committee to 
hold additional hearings) are amendable.
     If the Senate agrees to any conditions, they are attached 
to the resolution following any proposed amendments, to which 
the Senate had agreed earlier, to the text of the treaty. After 
action on any proposed reservations, etc., the Senate finally 
votes on a resolution of ratification that may contain both 
amendments proposed to the treaty and amendments (in the form 
of conditions) to the resolution itself. Approving the 
resolution, as it may have been amended, requires a vote of at 
least two-thirds of the Senators present and voting.

                consideration of treaties under cloture

     The cloture provisions of Senate Rule XXII can be applied 
to the consideration of treaties. In the absence of cloture, 
the treaty and its resolution of ratification, and amendments 
to them, are debatable at length, and amendments need not be 
germane. At any time during the Senate's consideration of a 
treaty or resolution, a cloture motion may be filed. To be 
successful, a cloture motion requires the affirmative votes of 
at least ``three-fifths of the Senators duly chosen and 
sworn.'' Cloture, if invoked, applies to floor action on both 
the treaty and the resolution of ratification. The Senate does 
not have to invoke cloture separately on the treaty and then on 
the resolution.
     If cloture is invoked, there is then a total of 30 
additional hours permitted for consideration of the treaty and 
the resolution of ratification, and all amendments to them. The 
time consumed by votes and quorum calls as well as by debate in 
connection with the treaty and the resolution all is included 
within the 30-hour limitation. However, any time that the 
Senate devotes to considering legislative business or other 
executive business does not count against the 30 hours. During 
these 30 hours for post-cloture consideration, each Senator is 
limited to 1 hour of speaking time, except that any Senator who 
has not spoken for, or yielded, at least 10 minutes during the 
30-hour period is permitted up to 10 minutes for debate after 
the 30 hours elapse. Under cloture, a germaneness rule 
governing amendments is in effect, and no Senator may call up 
more than two amendments until every other Senator has had an 
opportunity to do likewise. After the 30 hours expire, Senators 
may not offer additional amendments to either the treaty or the 
resolution of ratification.
     The Senate invoked cloture in 1992 during consideration of 
START I and its related protocol. The Bush Administration 
wanted to obtain the Senate's advice and consent before the 
102d Congress adjourned in October of that year. Senate leaders 
feared a filibuster by opponents, or at least a lengthy debate 
that would delay other business and adjournment. On September 
26, 1992, Senate Majority Leader George Mitchell submitted a 
cloture motion that the Senate adopted on September 29 by a 
vote of 87-6, putting the treaty under the 30-hour limitation 
for post-cloture consideration.\76\
---------------------------------------------------------------------------
    \76\ Treaty Docs. 102-20 and 102-32. Congressional Record, 
September 26, 1992, p. S15336 and September 29, 1992, p. S15504 (daily 
ed.).
---------------------------------------------------------------------------
     In some cases, filing cloture motions appears to have 
expedited Senate consideration of treaties even though cloture 
was not invoked on them. After a week of debate on the INF 
Treaty, for example, Senate Majority Leader Robert Byrd 
submitted a cloture motion on May 24, 1988, with a vote 
scheduled for May 26. With debate on amendments moving 
expeditiously, the vote was deferred on May 26, and on May 27 
Senator Byrd received unanimous consent to set a schedule of 
votes on pending amendments and to vitiate the cloture 
motion.\77\
---------------------------------------------------------------------------
    \77\ Congressional Record, May 27, 1988, p. S12785 (daily ed.).
---------------------------------------------------------------------------

                               final vote

     The final vote on agreeing to the resolution of 
ratification requires a two-thirds majority of those present 
and voting for approval. Almost all other treaty-related 
questions--amendments and procedural matters, for example--are 
decided by simple majority votes. (The one exception is a 
motion to postpone a treaty indefinitely, a rarely offered 
motion, that also requires a two-thirds vote for approval.) The 
Constitution does not require that any treaty-related votes be 
decided by calling the roll. Nevertheless, the Senate 
frequently conducts final treaty votes by roll call at times 
convenient for most Senators, although it sometimes acts on 
noncontroversial treaties by division votes instead. Increased 
use of roll call votes developed as a result of adverse 
publicity in the early 1950s when the Senate approved consular 
conventions with Ireland and the United Kingdom with only two 
Senators present.\78\
---------------------------------------------------------------------------
    \78\ See the account of this incident in Carl Marcy, A Note on 
Treaty Ratification. American Political Science Review 47:4, December 
1953, p. 1130.
---------------------------------------------------------------------------
     In recent years, with the proliferation of roll call votes 
and the increasing number of treaties concluded by the United 
States, the Senate frequently has approved two or more treaties 
en bloc, with a single roll call vote covering all of them. As 
noted, on occasion it also has used the alternative procedure 
of approving treaties by division vote. In those instances the 
Presiding Officer asks the Senators present to indicate their 
position by standing to be counted, and then announces his 
conclusion that at least two-thirds of those present have voted 
in favor of the resolution of ratification. On October 18, 
2000, for instance, the Senate approved 33 treaties on diverse 
subjects by division votes.\79\
---------------------------------------------------------------------------
    \79\ Congressional Record, October 18, 2000, pp. S10658-S10667 
(daily ed.).
---------------------------------------------------------------------------
     When time pressures are severe and the treaties to be 
considered are non-controversial, the Senate may agree, by 
unanimous consent, to consider multiple treaties en bloc and to 
dispense with all the Senate's regular procedures for 
considering them. On October 21, 1998, for example, during the 
closing minutes of the 105th Congress, the Senate cast 1 
division vote by which it gave its advice and consent to the 
ratification of 30 treaties. The Senate acted under the terms 
of the following unanimous consent agreement propounded by 
Senator DeWine on behalf of the Majority Leader:
          Mr. DE WINE. Mr. President, on behalf of the Majority 
        Leader of the Senate, I ask unanimous consent that the 
        Senate proceed to executive session to consider the 
        following treaties on today's Executive Calendar: 
        Numbers 24 through 54.
          The PRESIDING OFFICER. Without objection, it is so 
        ordered.
          Mr. DE WINE. Mr. President, I further ask unanimous 
        consent that the treaties be considered as having 
        passed through their various parliamentary stages up to 
        and including the presentation of the resolution of 
        ratification, that all committee provisos, 
        reservations, understandings, and declarations be 
        considered agreed to.
          I further ask unanimous consent that two technical 
        amendments that are at the desk to treaty documents 
        105-34 and 104-40 be considered as agreed to, that any 
        statements be inserted in the Congressional Record as 
        if read.
          I further ask that there be one vote to count as 
        individual votes on each of the treaties, and further, 
        when the resolutions of ratification are voted upon, 
        the motions to reconsider be laid upon the table, that 
        the President then be notified of the Senate's action, 
        and following the disposition of the treaties, the 
        Senate return to legislative session.
          The PRESIDING OFFICER. Without objection, it is so 
        ordered.\80\
---------------------------------------------------------------------------
    \80\ Congressional Record, October 21, 1998, pp. S12972-S12973 
(daily ed.).

     Once approved, the treaty, with the resolution of 
ratification as agreed to by the Senate and signed by the 
Secretary of the Senate, is transmitted by the Senate's 
Executive Clerk to the White House. The White House then sends 
it to the Department of State where the instruments of 
ratification are prepared for the President's signature. Once a 
resolution of ratification has been transmitted to the White 
House, the Senate is unable to reconsider its actions with 
respect to the treaty unless the President should consent or 
desire to resubmit the treaty for that purpose.\81\
---------------------------------------------------------------------------
    \81\ Resolutions of ratification, like bills, are subject to 
motions to reconsider. If the Senate votes to reconsider the vote by 
which it agreed to a resolution of ratification, there could be another 
vote on the same question in the same Congress. However, the Senate 
cannot reconsider its vote on any matter unless it still has custody of 
it.
---------------------------------------------------------------------------

                 failure to receive two-thirds majority

     If a treaty fails to receive the two-thirds vote necessary 
for Senate advice and consent, the Executive Clerk normally 
prepares a resolution for Senate approval reporting that fact 
to the President. Unless the Senate acts affirmatively by 
resolution to return a rejected treaty to the President, 
however, that treaty is returned to the Senate's Executive 
Calendar. Then, in accordance with paragraph 2 of Rule XXX, it 
automatically is referred back to the Foreign Relations 
Committee at the conclusion of the Congress.
     The last time that the Senate rejected a treaty and 
returned it to the President was in 2000. The Montreal Protocol 
No. 3 would have modified the liability limits of the Warsaw 
Convention for personal injury and death resulting from airline 
accidents. Only four other treaties were defeated and returned 
in the 20th century, the Versailles Peace Treaty of 1919 being 
the most significant of these.\82\
---------------------------------------------------------------------------
    \82\ U.S. Congress. Senate Committee on Foreign Relations. 
Background Information on the Committee on Foreign Relations, United 
States Senate (5th revised edition, June 9, 1982), Document No. 97-30, 
97th Cong., 2d Sess., p. 11.
---------------------------------------------------------------------------
     The Senate has considered some treaties without casting 
final votes on giving its advice and consent to their 
ratification. In such cases, the treaties ultimately are 
returned to the Committee on Foreign Relations where they can 
remain indefinitely on the committee's calendar. In 1972, for 
instance, the Senate debated an international convention on 
civil liability for oil pollution damage. However, the Senate 
did not reach a final vote on the convention, so it was 
returned to the committee at the end of the Congress. 
Similarly, in 1980, the committee reported and the Senate 
debated, but did not vote on, separate maritime boundary 
agreements with Mexico and Cuba. At the final adjournment of 
the Congress later that year, both agreements were returned to 
the committee. The committee took no further action on the 
agreement with Cuba. In 1997, however, the committee again 
reported, and the Senate gave its approval to, the agreement 
with Mexico.
     Some treaties have been voted on and failed to receive the 
required two-thirds majority, but then were returned to the 
Foreign Relations Committee, leaving open the possibility that 
the committee and the Senate could vote on them again. In some 
cases, no further action has been taken. The Optional Dispute 
Settlement Protocol to the Geneva Law of the Sea Treaties 
failed on May 26, 1960. At the end of the Congress, the 
protocol was re-referred to the committee and placed on its 
calendar. (Ex. N, 86-1), where it remained for more than 40 
years.\83\
---------------------------------------------------------------------------
    \83\ A summary of Senate action on this issue appears in Comment, 
Laws and Contemporary Problems 46:2, p. 19.
---------------------------------------------------------------------------
     In other cases, further action did take place. On March 8, 
1983, Ex. B, 95-1, Two Related Protocols to the Warsaw 
Convention on Airline Liability, Concluded at Montreal, failed 
to receive the necessary two-thirds vote and were returned to 
the Foreign Relations Committee calendar. The committee 
reported both protocols again in 1990 and then once again in 
1991; but the Senate took no action. In 1998, because of 
intervening actions resulting in the acceptance by the airline 
industry of higher liability limits for personal injury and 
death, the committee reported Montreal Protocol No. 4 favorably 
but recommended that Montreal Protocol No. 3 be returned to the 
President. Protocol No. 4 concerned liability limits for 
baggage and cargo and had never been particularly 
controversial; it had failed of adoption because it was linked 
with Protocol No. 3, which concerned the controversial issue of 
liability for personal injury and death. Once the political 
situation permitted the two protocols to be separated, Montreal 
Protocol No. 4 was readily approved by the Senate and Protocol 
No. 3 was returned to the President.\84\
---------------------------------------------------------------------------
    \84\ Ex. B, 95-1, submitted January 14, 1977. Exec. Rept. 97-45, 
December 16, 1981. Exec. Rept. 98-1, February 10, 1983; Congressional 
Record, March 8, 1983, p. S2279 (daily ed.); Exec. Rept. 101-21, June 
28, 1990; Exec. Rept. 102-1, February 5, 1991; Congressional Record, 
June 28, 1991, p. S9216 (daily ed.); August 1, 1991, p. S11711; 
November 5, 1991, p. S15875; Exec. Rept. 105-20, August 25, 1998; 
Congressional Record, September 28, 1998, p. S11059 (daily ed.).
---------------------------------------------------------------------------
     In at least one instance, the Senate has approved a treaty 
after rejecting it and then agreeing to a motion to reconsider 
that decision. By a vote of 49-32, the Senate rejected a tax 
convention with the United Kingdom on June 23, 1978. The Senate 
then agreed to reconsider that vote and, 4 days later, approved 
the convention by a vote of 82-5.\85\
---------------------------------------------------------------------------
    \85\ Ex. K, 94-2; Ex. Q, 94-2; Ex. J, 95-1.
---------------------------------------------------------------------------

                         F. Return or Withdrawal

     More often than being disapproved by Senate vote, treaties 
lacking adequate support simply are not reported by the Foreign 
Relations Committee or, if reported, are never voted on by the 
Senate. These treaties may remain pending on the calendar of 
the committee or they may be returned to the President.
     The normal practice for returning treaties has been for 
the committee to report out, and for the Senate to adopt, a 
Senate resolution directing the Secretary of the Senate to 
return a particular treaty or treaties to the President. This 
procedure was used several times in 1981: once to return a 
pending fishing treaty with Canada that lacked Senate support, 
and on two other occasions to return obsolete tax treaties.\86\ 
In 1991, the Senate adopted a resolution to return 1979 and 
1983 Amendments to the 1966 International Convention on Load 
Lines.\87\ President Bush had requested the return of the 
amendments when he submitted the 1988 Protocols Relating to the 
Safety of Life at Sea Convention and the Load Lines Convention, 
which replaced the earlier amendments.\88\ Most recently, the 
Foreign Relations Committee reported S. Res. 267 on March 9, 
2000, proposing that the Secretary of the Senate be directed to 
return to the President a total of 18 treaties, including the 
Law of the Sea Protocol, mentioned earlier, that the Senate had 
received in September 1959, more than 40 years earlier.\89\ On 
October 12, 2000, after deleting one treaty from the list, the 
Senate approved the resolution.\90\
---------------------------------------------------------------------------
    \86\ The vehicle for returning these treaties was an executive 
resolution. Now, however, regular Senate resolutions are employed for 
this purpose.
    \87\ S. Exec. Res. 104, reported April 23, 1991, and agreed to June 
11, 1991. The amendments withdrawn were Treaty Docs. 97-14 and 100-12.
    \88\ Treaty Doc. 102-2, submitted March 19, 1991.
    \89\ Congressional Record, March 9, 2000, pp. S1423-S1424 (daily 
ed.).
    \90\ Id., October 12, 2000, p. S10499 (daily ed.).
---------------------------------------------------------------------------
     The initiative for returning a treaty may come from the 
Foreign Relations Committee itself or the Senate leadership, or 
it may take the form of a request from the President.\91\ The 
President does not have the formal authority to withdraw a 
treaty from Senate consideration without the Senate's 
concurrence. In practice, however, a President can render any 
pending treaty effectively moot, at least for the duration of 
his time in office, simply by declaring his unwillingness to 
ratify it, regardless of whatever action the Senate might take. 
The decision to return one or more treaties usually reflects a 
mutual agreement between the Senate and the President, and 
often is primarily a housecleaning decision to remove obsolete 
or superseded treaties from the committee calendar. As 
discussed earlier, the Senate also can approve a resolution, 
without prior action on it by the Foreign Relations Committee, 
in order to return to the President a treaty that failed to 
obtain the necessary two-thirds vote of approval.
---------------------------------------------------------------------------
    \91\ A Presidential message asking for the return of a treaty is 
transmitted by the Senate Parliamentarian to the Executive Clerk, who 
delivers it to the Foreign Relations Committee.


     VII. PRESIDENTIAL OPTIONS ON TREATIES AFTER SENATE ACTION \1\
---------------------------------------------------------------------------

    \1\ Prepared by Raphael F. Perl, Specialist in International 
Affairs.
---------------------------------------------------------------------------
                              ----------                              

    When a treaty to which the Senate has advised and consented 
in either qualified or unqualified form is returned to the 
President, a number of procedural options are available to 
him.\2\ He may ratify the treaty; resubmit the treaty for 
further consideration at a later date; or simply decide not to 
ratify the treaty.\3\ If he resubmits the treaty, he may do so 
in its original form, or he may do so in a form which has been 
modified as a result of further negotiations. If he decides not 
to ratify the treaty, he may so indicate in a formal 
announcement, or he may do nothing. The President may also 
request withdrawal of a treaty from Senate consideration.\4\
---------------------------------------------------------------------------
    \2\ In some instances the Senate has also rejected a treaty. See 
Collier, E., U.S. Senate Rejection of Treaties, a Brief Survey of Past 
Instances. March 30, 1987, Congressional Research Service Report 87-
305F. The Comprehensive Nuclear Test-Ban Treaty is the most recent 
example. Senate Treaty Doc. 105-28.
    \3\ See Whiteman, M., Digest of International Law, Washington, 
D.C., U.S. Government Printing Office, 1970, v. 14, p. 61 and Crandall, 
Treaties, Their Making and Enforcement, pp. 98-101. (2d ed. 1916).
    \4\ Presidential withdrawal of a treaty while that treaty is under 
consideration by the Senate is discussed in Chapter VI.
---------------------------------------------------------------------------
    This chapter discusses the options available to the 
President when a treaty is returned to him together with the 
Senate's resolution of advice and consent to ratification. It 
also briefly examines options available to the President if 
other nations (after Senate consideration) subsequently attach 
conditions to a treaty which may affect its meaning.

                            A. Ratification

                       ratification of the treaty

    When the Senate gives its advice on and consent to a treaty 
and returns the treaty to the White House, the President is 
then free to ratify the treaty if he so chooses. Ratification 
is a formal act on the instrumental plane expressing the 
consent of a state to be bound by a treaty.\5\ There is no 
legal obligation for a nation to ratify a treaty signed on its 
behalf.\6\
---------------------------------------------------------------------------
    \5\ cf. Whiteman, M., Digest of International Law, v. 14, pp. 45-
48.
    \6\ Ibid., p. 50.
---------------------------------------------------------------------------
    A nation generally confirms its willingness to be bound in 
a formal document. Such documents are generally referred to as 
instruments of ratification. However, when the treaty so 
provides, they may take the form of instruments of acceptance, 
instruments of approval, or instruments of accession.\7\
---------------------------------------------------------------------------
    \7\ Vienna Convention on the Law of Treaties, S. Exec. Doc. L, 
Article 16. S. Exec. Doc. L, 92d Cong., 1st Sess. (1971). See Appendix 
5 (hereafter cited as Vienna Convention).
---------------------------------------------------------------------------
    A treaty may specifically provide that it is to be ratified 
by the President by and with the advice and consent of the 
Senate.\8\ However, this full formulation is not required. A 
treaty may provide language, in more general terms, to the 
effect that ``consent * * * shall be expressed by means of 
ratification,'' or that it is signed ``subject to 
ratification,'' or ``subject to ratification by signatory 
States in accordance with their respective constitutional 
procedures.'' \9\ The more neutral language is usually used to 
indicate that a treaty is not binding.
---------------------------------------------------------------------------
    \8\ Treaty of Amity, Commerce, and Navigation. (Jay Treaty with 
Great Britain) signed November 19, 1794. TS105; 12 Bevans 13. 
Ratification advised by the Senate with amendment, June 24, 1795.
    \9\ Article 14 of the Vienna Convention discusses consent to be 
bound expressed by ratification, but does not address the issue of 
whether ratification is required if an agreement is silent on this 
topic. Modern treaties generally do not fail to address this matter. 
See Restatement (Third) of the Foreign Relations Law of the United 
States, sec. 312, Reporters' Note 2.
---------------------------------------------------------------------------
    Ratification itself is a national act.\10\ In order for a 
nation to be bound internationally, treaties generally require 
international action such as the exchange or deposit of 
instruments of ratification.\11\ It is this international 
exchange or deposit of instruments of ratification which is 
ordinarily associated with the entry into force of a 
treaty.\12\ Bilateral treaties commonly specify entry into 
force upon exchange of instruments of ratification, or a 
certain time after such an exchange; multilateral treaties 
sometimes require that a certain number of instruments of 
ratification be deposited in order for the treaty to enter into 
force, either upon deposit of the requisite number or a certain 
time thereafter.
---------------------------------------------------------------------------
    \10\ Whiteman, Digest of International Law, v. 14, p. 62.
    \11\ Article 2 of the Vienna Convention defines ``ratification,'' 
``acceptance,'' ``approval,'' and ``accession'' as ``international acts 
whereby a state establishes on the international plane its consent to 
be bound by a treaty.''
    \12\ Whiteman, Digest of International Law, v. 14, p. 62.
---------------------------------------------------------------------------
    As ratification is a national process, it is determined by 
domestic procedures and requirements that differ between 
nations. For example, one state's law may require approval by 
the national legislature as a step in the ratification process 
while another's may not.\13\ In U.S. practice, after the Senate 
gives its advice and consent to ratification of a treaty, the 
Secretary of the Senate attests to the resolution of advice and 
consent, and transmits it together with the treaty to the White 
House for transmittal to the Secretary of State. The Secretary 
then prepares an instrument of ratification for the President's 
signature.\14\
---------------------------------------------------------------------------
    \13\ In the case of a bilateral executive agreement between the 
United States and another country, the law of the other country might 
require ratification there even though U.S. procedure might not include 
ratification in such a case.
    \14\ Whiteman, Digest of International Law, v. 14, pp. 46-47.
---------------------------------------------------------------------------
    The instrument of ratification includes the title of the 
treaty and the date of signature. It also contains a summary of 
action taken by the Senate together with conditions or 
amendments proposed by the Senate.\15\ The instrument will 
include a recitation of any reservations by the Senate, and may 
also include understandings or declarations contained in the 
Senate's resolution of advice and consent. Sometimes the Senate 
specifies or the Department of State determines that a proviso 
or statement need not be included in the instrument of 
ratification, particularly if its substance relates only to 
domestic affairs. The instrument of ratification is normally 
prepared in duplicate: one original is deposited or exchanged, 
the other is stored for the archival record along with the 
original treaty or, in the case of a multilateral treaty, a 
certified copy provided by the depositary.
---------------------------------------------------------------------------
    \15\ The President may also include in the instrument a statement 
or understanding which reflects the Senate's understanding of a treaty, 
even if the Senate did not choose to reduce its interpretation to a 
formal reservation or understanding. In such instances the record would 
reflect that the Senate attached a particular meaning to the treaty.
---------------------------------------------------------------------------
    Once prepared, the instrument of ratification, in 
duplicate, is sent to the President for signature. The 
President signs both duplicates of the instrument and returns 
both to the Secretary of State who, in attestation of the 
President's ratification, countersigns them and affixes to them 
the official Seal of the United States. At this point, 
ratification is complete on the national level and the 
instrument of ratification is ready for international exchange 
or deposit.\16\
---------------------------------------------------------------------------
    \16\ U.S. Department of State, Digest of United States Practice in 
International Law, 1974, p. 217. For an example of an instrument of 
ratification, see Appendix 9.
---------------------------------------------------------------------------

 exchange or deposit of instruments of ratification (entry into force)

    Treaties generally require the parties to take 
international action before an agreement formally enters into 
force. Thus, once a President has ratified a treaty, he would 
normally direct that the United States take the action 
necessary to effect the treaty's entry into force. In the case 
of bilateral treaties this action most often involves an 
exchange of instruments of ratification. Hence, a bilateral 
treaty usually enters into force upon such exchange or at a 
time after such an exchange, as provided in the treaty. In the 
case of multilateral treaties, such agreements generally enter 
into force after the deposit of a specified number of 
instruments of ratification at a specified location. Exchange 
or deposit, therefore, has been characterized as ``the key to 
entry into force.'' \17\
---------------------------------------------------------------------------
    \17\ Whiteman, Digest of International Law, v. 14, p. 62, and 
Digest of United States Practice in International Law, 1976, p. 217. A 
detailed examination of exchange procedures may be found in Volume 11 
of the Department of State's Foreign-Affairs Manual [Circular 175] at 
secs. 734 and 746, text reproduced in Appendix 4. International 
exchange or deposit of instruments of ratification is not always 
necessary in order for an international agreement to enter into force. 
For example, an executive agreement may provide that it comes into 
effect upon signature, or that its entry into force is dependent on a 
specified event.
---------------------------------------------------------------------------
    In the case of the Chemical Weapons Convention (CWC), for 
example, the Senate's resolution of advice and consent required 
the President to issue a certification before the U.S. 
instrument of ratification could be deposited.
    The Panama Canal Treaty \18\ and the Vienna Convention on 
the Law of Treaties \19\ are illustrative of requirements for 
expressing consent to be bound to bilateral and multilateral 
treaties, respectively. The Panama Canal Treaty provided that:
---------------------------------------------------------------------------
    \18\ Panama Canal Treaty Between the United States of America and 
Panama, signed at Washington, September 7, 1977, TIAS 10030, Article 
II, Sec. 1. The treaty terminated by its terms December 31, 1999.
    \19\ Articles 82-84.
---------------------------------------------------------------------------
          This Treaty shall be subject to ratification in 
        accordance with the constitutional procedures of the 
        two Parties. The instruments of ratification of this 
        Treaty shall be exchanged at Panama * * * \20\
---------------------------------------------------------------------------
    \20\ Article II, Sec. 1.

    Similarly, the Vienna Convention on the Law of Treaties 
reads:
          1. The present Convention shall enter into force on 
        the thirtieth day following the date of deposit of the 
        thirty-fifth instrument of ratification or accession.
          2. For each State ratifying or acceding to the 
        Convention after the deposit of the thirty-fifth 
        instrument of ratification or accession, the Convention 
        shall enter into force on the thirtieth day after the 
        deposit by such State of its instrument of ratification 
        or accession.\21\
---------------------------------------------------------------------------
    \21\ Vienna Convention, Article 84.

    When the necessary exchange or deposit of instruments of 
ratification of a treaty has been completed and the treaty has 
entered into force, the treaty text is prepared for publication 
by the Department of State in United States Treaties and Other 
International Acts Series,\22\ and registration for publication 
with the U.N. Secretariat pursuant to Article 102 of the U.N. 
Charter.\23\ The United States no longer has a practice of 
proclaiming treaties unless specific circumstances require 
proclamation.\24\
---------------------------------------------------------------------------
    \22\ 1 U.S.C. Sec. 112(a). Slip or pamphlet treaty texts are 
published in the Treaties and Other International Acts Series (TIAS). 
See 1 U.S.C. Sec. 113. See also Chapter X and section, Guide to 
Resources on Treaties, in the annotated bibliography contained in 
Appendix 1.
    \23\ Although Article 102 of the U.N. Charter specifies that a 
treaty must be registered before it can be invoked before any organ of 
the United Nations, this provision has not always been followed in 
practice.
    \24\ The proclamation of a treaty is a national act by which the 
text of a ratified treaty is publicized. Whiteman, Digest of 
International Law, v. 14, p. 113. For an example of a proclamation, see 
Appendix 9. There are no constitutional or statutory provisions in the 
United States which require proclamation of a treaty as such. However, 
if a treaty changes tariffs, the tariffs must be proclaimed. Most 
agreements do not specifically require proclamation, and because 
proclamation is a national act, the absence of a proclamation does not 
affect the international obligation of a treaty. Whiteman, Digest of 
International Law, v. 14, p. 114.
---------------------------------------------------------------------------

        B. Resubmission of the Treaty or Submission of Protocol

    The President may also resubmit a rejected or modified 
treaty to the Senate for reconsideration at any time prior to 
its ratification although the general practice is to submit a 
protocol or supplemental agreement setting out amendments. The 
option of resubmitting the entire treaty permits the 
flexibility of delaying ratification of a treaty if, for 
example, the President expects an imminent change in the 
fundamental circumstances which gave rise to the agreement. It 
also permits him, in instances in which the Senate has rejected 
a treaty or attached reservations he opposed to a treaty, to 
wait for more favorable circumstances and resubmit the 
treaty.\25\ The President may also resubmit a treaty in a 
renegotiated form should a Senate understanding, declaration, 
or reservation alter or restrict its meaning to such a degree 
that it was unacceptable to him or to the other party to the 
agreement.
---------------------------------------------------------------------------
    \25\ For example, the Senate might be more receptive to unqualified 
advice and consent to a multilateral treaty which is resubmitted after 
100 other signatories have ratified it, instead of just a few at the 
time it was originally submitted.
---------------------------------------------------------------------------
    Generally, renegotiation of a treaty will be achieved by 
negotiation of a protocol or supplement to the original 
agreement.\26\ A common motive for such Presidential action is 
to enable the Senate to give advice and consent to ratification 
without reservations, or to avoid outright Senate rejection of 
a treaty. In such circumstances, the executive branch usually 
attempts to negotiate a protocol or supplement to the treaty 
which eliminates objections raised or clarifies provisions 
questioned by the Senate.\27\ Any such instrument is then 
submitted to the Senate for consideration together with the 
original treaty. Such was the case, for example, with the 
United Nations Convention on the Law of the Sea, which was done 
in 1982. The United States did not sign the convention at that 
time because of flaws in the convention's seabed mining regime. 
An Agreement Relating to the Implementation of Part XI of the 
United Nations Convention on the Law of the Sea was transmitted 
to the Senate in 1994, along with the original convention. The 
Letter of Submittal from the Secretary of State states that the 
agreement ``contains legally binding changes to that part of 
the Convention dealing with the mining of the seabed * * * and 
is to be applied and interpreted together with the Convention 
as a single instrument.'' \28\ The agreement itself deals 
principally with the renegotiated seabed mining provisions; by 
correcting those defects in the chief convention, however, it 
``promotes universal adherence to the Convention by removing 
obstacles to acceptance of the Convention by * * * the United 
States.'' \29\
---------------------------------------------------------------------------
    \26\ For example, the U.S.-U.K. Supplementary Treaty to the 
Extradition Treaty of June 8, 1972, with annex. TIAS 12050.
    \27\ Whiteman, Digest of International Law, v. 14, p. 58.
    \28\ Senate Treaty Doc. 103-39, p. v.
    \29\ Ibid.
---------------------------------------------------------------------------
    However, in instances where a clarification is sought, the 
executive branch may be able to satisfy the Senate with 
assurances that specified provisions of a treaty will be 
administered in a certain way. In such instances, negotiation 
of a protocol would not be necessary.\30\
---------------------------------------------------------------------------
    \30\ Whiteman, Digest of International Law, v. 14, p. 58.
---------------------------------------------------------------------------
    Another variant is presented by the 1974 Threshold Test Ban 
and 1976 Peaceful Nuclear Explosion Treaties. It was not until 
protocols relating to verification of both treaties were 
concluded in 1990 that the Senate gave advice and consent to 
ratification of the two treaties and their related protocols. 
The most recent example of close linkage between a treaty and a 
protocol to it is the Inter-American Convention on Mutual 
Assistance in Criminal Matters, done in 1992, and its optional 
protocol, done in 1993, which were transmitted and treated by 
the Senate as a single package; the Senate gave its advice and 
consent to ratification of both instruments on October 18, 
2000.\31\
---------------------------------------------------------------------------
    \31\ Senate Treaty Doc. 105-25, S. Exec. Rept. 106-24.
---------------------------------------------------------------------------
    A treaty may also be formally resubmitted to the Senate, 
after full advice and consent have been granted, but before the 
treaty has been ratified by the President or entered into 
force. Such instances may occur when restrictive provisions 
added in order to obtain the Senate's advice and consent are 
not accepted by the other signatory(s) to the treaty. With the 
passage of time, the Executive may believe the Senate will be 
less inclined to impose restrictions, or the other government 
may be more receptive to accepting the wishes of the Senate.
    An often cited historical example of such a situation 
involves a naturalization convention between the United States 
and Turkey concluded at Constantinople, August 11, 1874. The 
Senate, on January 22, 1875, granted advice and consent to this 
agreement with amendments which were not fully accepted by the 
Turkish Government, and the treaty was not ratified by the 
President. Fourteen years later, the Turkish Government decided 
to accept the agreement as amended, but because of the passage 
of time, President Cleveland again gave the Senate the 
opportunity to act. The Senate, by a resolution dated February 
28, 1889, advised the President to ratify but added a new 
understanding as a condition. A new agreement which 
incorporated all of the Senate amendments was finally 
negotiated and signed by the President in 1908. This agreement 
was then submitted to the Senate and subsequently ratified.\32\
---------------------------------------------------------------------------
    \32\ Crandall, Treaties, Their Making and Enforcement, pp. 101-102. 
However, once the Senate has given advice and consent to a treaty, it 
does not appear that the President is under any constitutional 
obligation to resubmit the treaty as was done in the above cited 
example. Ibid., p. 101.
---------------------------------------------------------------------------

                    C. Inaction or Refusal to Ratify

    U.S. law does not impose any legal obligation on the 
President to ratify a treaty after the Senate has given its 
advice and consent.\33\
---------------------------------------------------------------------------
    \33\ Restatement (Third) of the Foreign Relations Law of the United 
States, sec. 303, Comment d and Reporters' Note 3. This power, although 
not expressly given to the President by the Constitution, has been 
characterized as a ``power which inheres in the executive power 
conferred upon him to conduct our foreign relations'' See Statement of 
John C. Spooner before the U.S. Senate of January 23, 1906. 
Congressional Record, 59th Cong., 1st Sess., p. 1419.
---------------------------------------------------------------------------
    It is also generally conceded that international law does 
not require a state to ratify a treaty until it chooses to 
become a party to the treaty by the means specified in the 
treaty.\34\ The President therefore, is free to ratify, or not 
to ratify a treaty as he sees fit.
---------------------------------------------------------------------------
    \34\ Whiteman, Digest of International Law, v. 14, p. 50.
---------------------------------------------------------------------------
    As ratification requires an affirmative act on the part of 
a President, a failure of the President to ratify means that a 
treaty cannot enter into force for the United States. In most 
cases, Presidential delay of ratification is because 
implementing legislation for the treaty has not yet been 
enacted by the Congress. Presidential inaction is usually 
temporary, as was the case with ratification of the 1958 United 
Nations Convention on the Recognition and Enforcement of 
Foreign Arbitral Awards.\35\ The Senate granted its advice and 
consent to ratification of this convention in 1968, but 
implementing legislation (Public Law 91-360) was not approved 
until July 1970. The President then ratified the convention in 
September 1970.\36\
---------------------------------------------------------------------------
    \35\ 21 U.S.T. 2517, TIAS 6997, 330 UNTS 38.
    \36\ Another more recent example is the treaty with Mexico on the 
Execution of Penal Sentences [28 U.S.T. 7399, TIAS 8718]. The treaty 
was signed on November 25, 1976. Senate advice and consent was given on 
July 21, 1977, and implementing legislation (Public Law 95-144) was 
approved on October 28, 1977. Instruments of ratification were 
exchanged with Mexico 3 days later on October 31, 1977. See also 
Restatement (Third) of the Foreign Relations Law of the United States, 
sec. 303, Reporters' Note 3.
---------------------------------------------------------------------------
    Numerous historical examples of Presidential non-
ratification have been cited by scholarly sources.\37\ One was 
a treaty of amity, commerce, and extradition with Venezuela 
signed July 10, 1856. The Senate gave advice and consent to 
ratification of the treaty with an amendment, but the President 
decided not to ratify the treaty and instead renegotiated it in 
order to effect other changes. The re-negotiated treaty was 
eventually signed, submitted to the Senate, and ratified.\38\
---------------------------------------------------------------------------
    \37\ See Crandall, Treaties, Their Making and Enforcement. pp. 97-
99.
    \38\ Ibid., p. 98. For a list of 38 treaties that were approved by 
the Senate with reservations, but which did not enter into force as a 
result of the reservations, see Collier, E., U.S. Senate Rejection of 
Treaties [Congressional Research Service Multilith 79-149 F.] (July 16, 
1979.) This list, however, does not distinguish treaties unratified 
because Senate reservations were unacceptable to the President, from 
those not ratified because reservations were unacceptable to other 
parties.
---------------------------------------------------------------------------
    Non-ratification, after Senate advice and consent is given 
to a treaty, serves as a final option for a President who does 
not want to ratify a particular treaty. In practice, however, 
Presidential dissatisfaction will be expressed at earlier 
stages of the treaty's consideration, and as Presidents and 
their policies may differ, one President may be reluctant to 
ratify a treaty signed under a previous administration.
    For example, the Eisenhower Administration took the formal 
position that the ``United States will not * * * become a party 
to the covenants on human rights, the convention on the 
political rights of women and certain other proposed 
multilateral agreements.'' \39\ Presumably, this statement 
included the Genocide Convention, signed by a previous 
administration on December 11, 1948, but which had been 
awaiting the advice and consent of the Senate since 1949.\40\ 
Eisenhower's policy was reversed by the Kennedy Administration 
which sent to the Senate human rights conventions on slavery, 
forced labor, and political rights of women,\41\ and by the 
Nixon Administration which renewed the earlier request for 
Senate advice and consent to the Genocide Convention.\42\
---------------------------------------------------------------------------
    \39\ U.S. Department of State Bulletin, vol. 32, p. 822 (1955).
    \40\ See Henkin, Foreign Affairs and the Constitution (1972), p. 
394 n. 71.
    \41\ 113 Congressional Record 8332 (1967).
    \42\ S. Exec. Rept. 92-6, 92d Cong., 1st Sess. (1971).
---------------------------------------------------------------------------
    Another more recent example, albeit involving 
administration opposition to ratification prior to a formal 
vote by the full Senate, is found in the Vienna Convention on 
the Law of Treaties. The Foreign Relations Committee ordered 
reported out a resolution of advice and consent to the treaty 
on September 7, 1972, that contained an understanding and 
interpretation which the executive branch [through the 
Department of State] opposed. As a result of negotiations 
between the executive branch and the Senate, the convention was 
not voted upon by the full Senate and has since remained in 
committee, thereby relieving the President of the possibility 
of being presented with an ``advised and consented'' treaty in 
a form not acceptable to him.\43\
---------------------------------------------------------------------------
    \43\ See Digest of United States Practice in International Law, 
1974, pp. 195-198. For further discussion of Senate action on the 
Vienna Convention, see Chapter III. For subsequent consideration, see 
Nash (Leich), Cumulative Digest of United States Practice in 
International Law 1981-1988, pp. 1228-1239.
---------------------------------------------------------------------------

           procedure when other nations attach new conditions

    Unless prohibited by the agreement itself, a state may 
attach conditions to an agreement only at signature or 
ratification. If such expressions are attached to the treaty as 
formal statements which limit or modify its substance, they are 
known as ``reservations.'' \44\ A reservation is a formal 
declaration by a state that excludes or modifies the legal 
effect of certain treaty provisions as between that state and 
other parties.\45\ If a foreign state, or in the case of the 
United States, a President, adds a reservation to a bilateral 
treaty after the Senate has given advice and consent, the 
President must submit the new reservation to the Senate for its 
advice and consent prior to his ratification of the treaty.\46\
---------------------------------------------------------------------------
    \44\ Whiteman, Digest of International Law, v. 14, p. 137.
    \45\ Ibid. Cf. also Vienna Convention on the Law of Treaties, 
Article 2(1)(d).
    \46\ Henkin, Foreign Affairs and the Constitution (1972), p. 379. 
However, in the case of multilateral treaties this is generally not the 
practice followed. See discussion which follows.
---------------------------------------------------------------------------
    As a practical matter, however, reservations to 
multilateral treaties made by other nations after Senate advice 
and consent are generally not submitted to the Senate. This is 
often the case with multilateral agreements where the executive 
branch has developed a practice of dealing with new 
reservations of other states, after Senate advice and consent 
to a multilateral treaty, without seeking Senate advice and 
consent on the new reservation. This development owes its 
origin in large part to the greatly accelerated pace and 
increased volume of U.S. treatymaking that has been the rule 
following the Second World War, and which has prompted the 
Department of State, since then, not to refer to the Senate for 
advice and consent new reservations made by other states to 
multilateral treaties previously approved by the Senate.\47\
---------------------------------------------------------------------------
    \47\ A letter of March 1, 1966, on file in the Office of the Legal 
Adviser, Department of State, addressed U.S. practice in this regard 
over the preceding 20 years. The text of the letter is reproduced in 
the American Journal of International Law, v. 60 (1966) p. 563.
---------------------------------------------------------------------------
    The rationale for such State Department action has been 
characterized by some sources as apparently being based on a 
doctrine of implied or tacit consent by the Senate to such 
reservations,\48\ and a Department of State letter on this 
issue \49\ maintains that the ``reservations made during this 
period have been such that they were not regarded as requiring 
Senate consideration.'' The letter cited a number of factors 
leading to this conclusion including the existence of 
``reservations'' which were not true reservations (that is, 
reservations by title only and not by substance), repetition by 
states of reservations identical to, or patterned on those of 
other states to which the Senate had originally consented, and 
policies unique to some multilateral agreements which permit 
reservations without referral to other states, or which make 
them subject to majority approval by the other nations--a 
process to which the Senate had originally given its advice and 
consent.\50\
---------------------------------------------------------------------------
    \48\ Restatement (Third) of the Foreign Relations Law of the United 
States, sec. 314, Comment c. See also discussion of tacit amendment in 
section on amendments in Chapter IX.
    \49\ Letter of March 1, 1966, American Journal of International 
Law, v. 60 (1966), p. 563.
    \50\ The letter cites the 1954 Convention concerning Customs 
Facilities for Touring [TIAS 3879] as an example of an agreement 
requiring majority approval of reservations. It has been suggested that 
in such cases * * * ``perhaps * * * the Executive concluded that, 
knowing the practice, the Senate had waived the need for its consent. 
Or that he could accept these modifications on his own authority.'' 
Henkin, Foreign Affairs and the Constitution, p. 379, n. 21. Note that 
the practice of attaching reservations to multilateral treaties which 
are not formally renegotiated, is often a controversial one. It, in 
effect, permits a state to depart from the terms of the treaty in 
contrast to the general agreement of the parties to be equally bound by 
the terms of the document. Thus, the practice of permitting 
reservations to multilateral treaties has the effect of making it 
attractive for states to express objections to a document, and at the 
same time, to become parties to it. The end result, however, is often a 
less homogenous document.
---------------------------------------------------------------------------
    States may also issue clarifications or explanations which 
do not substantively modify a treaty. Such statements may be 
titled ``declaration,'' ``understanding,'' or any other 
descriptive term a party desires. However, whether in fact a 
particular statement is a reservation or merely a non-
substantive addition to an agreement is determined by its 
content and not by its title. This distinction between 
reservations and other non-substantive conditions is important 
because non-substantive understandings, declarations, and 
statements made by other states after Senate advice and consent 
to ratification of a treaty are considered by the Department of 
State not to require new advice and consent.\51\
---------------------------------------------------------------------------
    \51\ Such statements may be regarded as nothing more than a 
clarifying statement. See Whiteman, Digest of International Law, v. 14, 
p. 188.
---------------------------------------------------------------------------
    The issue of whether or not a particular statement was 
indeed a non-substantive statement, not a reservation, was 
raised in regard to a communique issued by the Foreign Ministry 
of Panama on April 25, 1978.\52\ The communique in question 
concerned the Senate's reservations to the Panama Canal Treaty, 
and Senator Jesse Helms, in a letter to President Carter, 
stated that the Panamanian interpretation either rejected or 
repudiated ``key'' Senate changes.\53\ The response from the 
White House was that the communique in question had no legal 
effect as it merely contained a point-by-point description of 
items of Senate action together with a commentary thereon. The 
response stressed the State Department's view that the formal 
instruments of ratification of both the United States and 
Panama would contain the full texts of the amendments, 
conditions, reservations, and understandings which the Senate 
had approved along with the Panama Canal Treaties and that 
these items would be contained in the formal protocol of 
exchange. These were, it noted, the documents by which the 
parties would be bound.\54\
---------------------------------------------------------------------------
    \52\ See Digest of United States Practice in International Law, 
1978, pp. 729-731. The U.S. Senate adopted a resolution of advice and 
consent to the treaty with amendments, reservations and understandings 
earlier on March 16, 1978.
    \53\ Ibid., p. 729. For a text of the lengthy Panamanian 
communique, see Congressional Record, vol. 124, pt. 12 (June 4, 1978), 
pp. S16156-S16163. It is interesting to note that a Panamanian 
plebiscite, held in accordance with that country's constitution, 
approved the treaty as formulated prior to the issuance of this 
communique, just as the United States had.
    \54\ Letter of June 14, 1979, from Assistant Secretary of State for 
Congressional Relations Douglas J. Bennett, Jr., text partially 
reproduced in Digest of United States Practice in International Law, 
1978, p. 730.
---------------------------------------------------------------------------
     The White House position was, therefore, that because the 
Panamanian communique did not constitute a reservation in the 
opinion of the executive branch, the President was not required 
to submit it to the Senate for advice and consent. The Panama 
Canal Treaty subsequently entered into force on October 1, 
1979, without Presidential submittal of the Panamanian 
communique to the Senate for its advice and consent.\55\
---------------------------------------------------------------------------
    \55\ Ibid., See also U.S. Department of State, Treaties in Force, 
p. 225 (2000). Note that the day before ratification of the treaty, 
Panama inserted three new paragraphs in its ratification provision and 
the issue of whether these were non-substantive statements was again 
raised. See Congressional Record of June 15, 1978, v. 124, pt. 14. pp. 
17790-17793 for objections raised and the administration's response.
---------------------------------------------------------------------------
    The issue of whether or not certain statements of the 
Panamanian Government were reservations or not was again raised 
in hearings before the Senate Judiciary Committee's 
Subcommittee on Separation of Powers in June 1983.\56\ In the 
words of committee witness Dr. Charles H. Breecher:
---------------------------------------------------------------------------
    \56\ U.S. Congress. Senate. Committee on the Judiciary. Hearings 
before the Subcommittee on Separation of Powers. The Panama Canal 
Treaty--Constitutional and Legal Aspects of the Ratification Process, 
98th Cong., 1st Sess., June 23, 1983.
---------------------------------------------------------------------------
          [The] Panama Canal treaties have not--I repeat, not 
        been ratified in international law, and they therefore 
        did not go into effect on the 1st of October 1979, and 
        are not in effect now.
          The reason is very simple. In their respective 
        instruments of ratification, the United States and 
        Panama did not agree to the same text of the treaties. 
        Instead, Panama first agreed to the treaties as the 
        President of the United States had ratified them, 
        pursuant to Senate advice and consent, and then added 
        in both its instruments of ratification, unilaterally, 
        something they called an understanding, on which Panama 
        made its agreement to the treaties contingent.
          This Panamanian understanding--in reality, a counter-
        reservation to both treaties, three paragraphs long--
        would, had it been accepted by the United States, have 
        nullified the so-called DeConcini reservation under 
        which the United States has permanently * * * the right 
        to use independently * * * without Panamanian consent, 
        or even against Panamanian opposition, military force 
        in Panama to keep the Canal open and operating. Since 
        the United States has not accepted this Panamanian so-
        called understanding, there are no treaties in 
        international law.\57\
---------------------------------------------------------------------------
    \57\ Ibid., pp. 4-5.

    As part of his response to these assertions, Robert E. 
Dalton, Assistant Legal Adviser for Treaty Affairs at the 
Department of State, expressed the following viewpoint:
          It is indeed true that an amendment or reservation 
        added to a treaty after Senate ratification may require 
        Senate approval. This is based on the notion that the 
        constitutional mandate of Senate advice and consent to 
        a treaty should not be undercut by subsequent changes 
        to the document which the Senate has approved. However, 
        the flaw in the application of these principles to the 
        three-paragraph Panamanian statement is that the 
        Panamanian statement is not an amendment or reservation 
        either in form or substance.

                                 * * *

          In the present case, the first two Panamanian 
        paragraphs are quite clearly labeled 
        ``understandings,'' and the third is a ``declaration.'' 
        On their face, then, they are not statements that would 
        seem to require submission to the Senate. Of course, 
        the definition in the Vienna Convention says, quite 
        rightly, that the label is not necessarily controlling; 
        it is the substance which determines whether a 
        statement is a true reservation. An analysis of the 
        three Panamanian paragraphs makes clear that they are 
        what they are labeled. None purports to exclude or 
        modify the DeConcini condition or any other provision 
        of the treaties, as advised and consented to by the 
        Senate. None is a true reservation.\58\
---------------------------------------------------------------------------
    \58\ Ibid., pp. 102-103.

    It must be stressed, in conclusion, that the issue of 
seemingly non-substantive statements raises an important 
question for the Senate. U.S. practice is such that when a 
treaty has once been sent to the Senate for advice and consent, 
it is the executive branch that determines whether a subsequent 
statement is a substantive modification or not. It is therefore 
up to the executive branch, in exercising its discretion not to 
submit such a statement to the Senate for its advice and 
consent, to proceed in a manner that does not trammel the 
Senate's constitutional role in the treatymaking process.


 VIII. DISPUTE SETTLEMENT, RULES OF INTERPRETATION, AND OBLIGATION TO 
                             IMPLEMENT \1\
---------------------------------------------------------------------------

    \1\ Prepared by Jeanne J. Grimmett, Legislative Attorney.
---------------------------------------------------------------------------
                              ----------                              

    Once a treaty has entered into force, states may differ in 
the interpretation of their obligations and disputes may arise. 
Most disputes are settled by consultation or negotiation. 
However, when these measures fail, states may resort to more 
formal dispute settlement procedures. This chapter examines the 
formal procedural options available to states that want to 
resolve treaty disputes peacefully when negotiations have 
failed. The most frequently used options are conciliation, 
arbitration, and judicial settlement. In the past, the U.S. 
Senate has sometimes attached conditions to its acceptance of 
compulsory judicial settlement procedures of the International 
Court of Justice in treaty disputes. As certain dispute 
settlement procedures in the Vienna Convention are similar to 
those previously approved with conditions--or in the case of 
the Law of the Sea Treaty Optional Protocol--rejected by the 
Senate \2\--particular attention is given to those procedures 
in the Vienna Convention which mandate compulsory jurisdiction 
of the International Court.
---------------------------------------------------------------------------
    \2\ Ex. N, 86-1, rejected May 27, 1960; motion to reconsider 
entered but not taken up. The Optional Protocol was returned to the 
President by S. Res. 267, 106th Cong., 2d Sess., adopted October 12, 
2000. 146 Congressional Record, October 12, 2000, p. S10499 (daily 
ed.).
---------------------------------------------------------------------------
    International law applies to disputes between nations. The 
rules of international law on treaty interpretation as 
specified in the Vienna Convention on the Law of Treaties 
parallel the traditional international rules of treaty 
interpretation. However, the rules governing treaty 
interpretation set forth by the Vienna Convention differ in 
some important respects from the rules of treaty interpretation 
applied by U.S. courts in determining a treaty's effect as 
domestic law. This chapter examines briefly the criteria for a 
treaty interpretation applied by these two systems. Finally, as 
disputes generally arise out of questions relating to a party's 
implementation of a treaty, the question of the obligation of 
Congress to implement an international agreement is also 
discussed.

                         A. Dispute Settlement

    If a dispute arises between states concerning a treaty's 
implementation, it may be possible for the parties involved to 
consult and negotiate a mutually acceptable solution. If 
negotiation does not resolve the dispute, the parties may 
resort to more formal remedies such as conciliation, 
arbitration and judicial settlement.

                              conciliation

    Conciliation is a non-binding process whereby the parties 
to a dispute submit to the efforts of an international body or 
commission of persons to bring about a friendly settlement of a 
dispute. The Vienna Convention provides that in certain 
disputes, if not otherwise settled \3\ within 12 months, a 
party to the dispute may request the Secretary General of the 
United Nations to set into motion an advisory conciliation 
procedure. Under this procedure, the Secretary General shall 
maintain a list of conciliators consisting of qualified jurists 
for prospective appointment to a commission which ``* * * shall 
hear the parties, examine the claims and objections, and make 
proposals to the parties with a view to reaching an amicable 
settlement of the dispute.'' \4\ The Commission is initially 
composed of an even number of members. Each state party to the 
dispute has 60 days to designate one commission member from the 
list who is not of its nationality, and one additional member--
not necessarily from the list--of its own nationality. The four 
conciliators then have an additional 60 days to choose a fifth 
conciliator as chairperson, but if they cannot agree within 
that time, the Secretary General chooses that person.\5\
---------------------------------------------------------------------------
    \3\ Or submitted to the International Court of Justice or to 
arbitration.
    \4\ Vienna Convention, Annex, Secs. 1, 5. Note that conciliation is 
also accorded recognition in article 33 of U.N. Charter to which the 
United States is a party.
    \5\ Ibid., Sec. 2.
---------------------------------------------------------------------------
    The commission may only hear a narrow range of disputes 
relating to validity, termination, withdrawal from or 
suspension of the operation of a treaty.\6\ It may not hear 
disputes relating to implementation, and it may not hear 
disputes relating to jus cogens (superior law). Any party to 
the convention, however, may submit a jus cogens dispute to the 
International Courts.\7\
---------------------------------------------------------------------------
    \6\ Vienna Convention, Arts. 65-66.
    \7\ Vienna Convention, Art. 66(a). For a discussion of jus cogens 
see Chapter III, Section D, supra. Jus cogens refers to the existence 
of a superior law or peremptory norm of international law which holds a 
special status internationally and which cannot be violated by a 
treaty. A dispute relating to jus cogens would center on the issue of 
whether a particular international rule is so universally accepted and 
exalted by the international community that no derogation is permitted 
from it. Parties to a treaty would not be legally permitted, even by 
choice, to violate such a rule. An example of such an agreement would 
be an aggression pact by two nations against a third. Such an agreement 
would violate the U.N. Charter prohibition against the use of force for 
the settlement of disputes, which is often cited as an example of jus 
cogens.
---------------------------------------------------------------------------
    Numerous bilateral agreements also provide for the 
establishment of conciliation commissions or boards. The 
Agreement Between the United States and Poland Regarding 
Fisheries in the Western Region of the Middle Atlantic Ocean 
\8\ is an example of a bilateral agreement of this type. 
Article 10 of the agreement provides for the creation of a 
conciliation board composed of four members, two appointed by 
each government. The governments undertake to encourage 
settlement of claims in accordance with the board's findings, 
but the parties involved are not bound to do so. If one of the 
parties refuses to settle in accordance with the board's 
findings, the board is to encourage the parties to submit to 
binding arbitration.
---------------------------------------------------------------------------
    \8\ Entered into force July 1, 1975, 26 U.S.T. 1117, Treaties and 
Other International Acts (TIAS) 8099.
---------------------------------------------------------------------------
    During two periods, 1913-1915 and 1928-1930, the United 
States entered into more than 40 bilateral conciliation 
treaties.\9\ The earlier of these treaties, the ``Bryan'' 
Treaties, provided for the establishment of commissions of 
inquiry on a permanent basis. Recourse to these commissions is 
binding, although the commission's reports are not binding on 
the parties. Senate consent, in these instances, was limited to 
the original treaties, the terms of which did not require 
subsequent Senate consent to specific appointments to the 
commission, or to the choice of its rules of procedure.\10\
---------------------------------------------------------------------------
    \9\ The so-called ``Bryan'' Treaties and ``Kellogg Conciliation 
Treaties.'' See Whiteman, Marjorie, Digest of International Law, v. 12, 
1971, pp. 948-950 (hereafter cited as Whiteman), for a list of 
countries and citations. The United States also signed a conciliation 
treaty with Liberia on August 21, 1939 (T.S. 968) and a multilateral 
Inter-American Convention on Conciliation in 1933 (T.S. 887).
    \10\ See, for example, the Treaty with Bolivia of Jan. 22, 1914, 38 
Stat. 1868, 5 Bevans 740.
---------------------------------------------------------------------------

                              arbitration

    Arbitration is ``the settlement of disputes between states 
by judges of their own choice, and on the basis of respect for 
law.'' \11\ Arbitration is procedurally similar to non-binding 
conciliation but differs from conciliation in that parties to 
arbitral proceedings agree to accept and to carry out the award 
of the tribunal in good faith. Individual treaties frequently 
contain an arbitration clause by which the parties agree to 
create special tribunals and to submit to them any disputes 
regarding the treaty's application or interpretation.\12\ Thus, 
the Treaty of Peace with Italy of February 10, 1947 provided 
that:
---------------------------------------------------------------------------
    \11\ Schwarzenberger, G. A Manual of International Law. 1967, p. 
241 (hereafter cited as Schwarzenberger). Arbitration is accorded 
special recognition by the Vienna Convention, which provides that a 
dispute relating to a jus cogens (superior law) not otherwise settled 
within 12 months, may be submitted to arbitration by consent of the 
parties instead of to the International Court of Justice. Vienna 
Convention, Art. 66(a).
    \12\ A treaty provision which grants a tribunal automatic 
jurisdiction over disputes regarding the application or interpretation 
of a treaty is known as a ``compromissory clause.'' Bishop, William W., 
Jr. International Law. 3d ed. 1971, pp. 68-69. Under international law 
a state may not be compelled to enter into third-party dispute 
settlement and must thus consent to its use. A compromissory clause is 
a means of giving such consent. American Law Institute, Restatement 
(Third) of the Foreign Relations Law of the United States. 1987, 
Sec. 902, Comment e (hereafter cited as Rest. 3d). For a discussion of 
U.S. treaty practice involving compromissory clauses, see Noyes, John 
E. The Functions of Compromissory Clauses in U.S. Treaties. Virginia 
Journal of International Law, v. 34, 1994, p. 831 (hereafter cited as 
Noyes).
---------------------------------------------------------------------------
          Any disputes which may arise in giving effect to * * 
        * the present Treaty shall be referred to a 
        Conciliation Commission consisting of one 
        representative of the Government of the United Nation 
        concerned and one representative of the Government of 
        Italy, having equal status.
          [Provisions for appointment of a third member 
        omitted]
          * * * The decision of the majority of the members of 
        the Commission * * * shall be accepted by the parties 
        as definitive and binding.\13\
---------------------------------------------------------------------------
    \13\ Treaty of Peace with Italy, signed Feb. 10, 1947, Art. 83, 
Sec. 6, TIAS 1648, 4 Bevans 311. Details of augmented Commission 
membership and procedures in the event the initial two members are 
unable to agree have been omitted.

    During the period 1928-1930, the United States concluded a 
series of at least 25 bilateral arbitration treaties with 
foreign nations. The text of these treaties generally specified 
that special agreements would provide for the organization of 
special tribunals, define their powers, state questions at 
issue, and settle the terms of reference, and that the special 
agreements would require the advice and consent of the 
Senate.\14\ On the other hand, there have been numerous 
instances in which the Senate has approved treaties providing 
for submission of specific matters to arbitration and has left 
it to the President to manage appointment of the arbitrators 
and to determine the scope and form of the arbitration.\15\
---------------------------------------------------------------------------
    \14\ See, for example, the Arbitration Agreement with Norway of 
Feb. 20, 1929, 46 Stat. 2278, 10 Bevans 488. A list of 25 countries 
with citations to U.S. Arbitration treaties with them is provided in 
Whiteman, v. 12, 1970, pp. 1044 and 1045.
    \15\ For a list of 39 such instances, see Willoughby, W. The 
Constitutional Law of the United States. 2d ed. 1929, p. 543. Note also 
that the United States is a party to the Convention on the Recognition 
and Enforcement of Foreign Arbitral Awards, 21 U.S.T. 2517, TIAS 6997. 
The Senate gave its advice and consent to this agreement with 
declarations on Oct. 4, 1968.
---------------------------------------------------------------------------
    In addition, a recent program of bilateral investment 
treaties has included an investor-state disputes mechanism that 
gives U.S. investors the right to binding arbitration against a 
host state without involvement of the U.S. Government, through 
the International Center for the Settlement of Investment 
Disputes.\16\ Binding investor-state arbitration is also 
provided for in the investment chapter of the trilateral North 
American Free Trade Agreement (NAFTA).\17\
---------------------------------------------------------------------------
    \16\ For a discussion of investment treaties, see Chapter XI.
    \17\ North American Free Trade Agreement, entered into force Jan. 
1, 1994, Arts. 1115-1138, H.R. Doc. 103-159, v. 1, 103d Cong., 1st 
Sess., 1993, pp. 1109-1121.
---------------------------------------------------------------------------
    The World Trade Organization (WTO) Understanding on Rules 
and Procedures Governing the Settlement of Disputes,\18\ which 
provides for the resolution of disputes arising under WTO 
agreements \19\ and operates through a system of ad hoc 
panels,\20\ incorporates binding arbitration at two points in 
the dispute process. In the understanding, WTO Members agree to 
submit to binding arbitration in the following situations: (1) 
to determine the length of time within which a Member must 
comply with an adopted panel (and any Appellate Body) report, 
in the event the time period proposed by the Member is 
unacceptable and the disputing parties cannot otherwise agree 
on a deadline, and (2) to determine the level of trade 
retaliation, in the event a defending party has not complied 
with its obligations with the agreed-upon compliance period, 
the WTO has authorized the prevailing party to retaliate, and 
the defending party objects to the level of suspension of trade 
concessions or obligations proposed by the prevailing party or 
claims that certain principles and procedures in the Dispute 
Settlement Understanding were not followed.\21\ In the latter 
proceeding, the arbitrator is to determine whether the level of 
the suspended WTO concessions or other obligations is 
equivalent to the level of nullification or impairment of WTO 
benefits. The Dispute Settlement Understanding also allows WTO 
Members to submit a dispute to arbitration upon mutual 
agreement of the disputing parties.\22\
---------------------------------------------------------------------------
    \18\ Understanding on Rules and Procedures Governing the Settlement 
of Disputes (Dispute Settlement Understanding), entered into force Jan. 
1, 1995, H.R. Doc. 103-316, v. 1, 103d Cong., 2d Sess., 1994, pp. 1654-
1678. Congress approved the Dispute Settlement Understanding in sec. 
101 of the Uruguay Round Agreements Act, Public Law 103-365, 108 Stat. 
4814.
    \19\ All WTO Members must be a party to the Dispute Settlement 
Understanding and are under an obligation ``to have recourse to, and 
abide by, the rules and procedures'' of the Understanding when they 
seek redress of WTO violations and other nullification and impairment 
of benefits, and not to take certain unilateral measures in WTO-related 
trade disputes. Dispute Settlement Understanding, Arts. 1:1, 23. WTO 
Members ``recognize that [the Understanding] * * * serves to preserve 
the rights and obligations of Members under the covered agreements, and 
to clarify the existing provisions of those agreements in accordance 
with customary rules of interpretation of public international law.'' 
Ibid., Art. 3:2. See generally Noyes, at 883-890.
    \20\ A panel is to issue a report on the disputed measure, which is 
subject to appeal by a disputing party to a standing Appellate Body. 
Once the panel, and any Appellate Body report is adopted by the WTO 
Members, the losing party must present a compliance plan to the WTO and 
is expected to comply with its obligations within a reasonable period 
of time; if the losing party does not do so, it is required to enter 
into negotiations over compensation with the prevailing party, if the 
latter so requests, or it may be subject to retaliation. The 
Understanding contains a negative consensus rule for certain decisions 
made by the WTO during a dispute proceeding aimed at strengthening the 
process and facilitating compliance with WTO obligations. The rule 
applies to the establishment of panels, the adoption of panel and 
Appellate Body Reports, and where compliance with adopted reports is 
not forthcoming and, if requested by the prevailing party in the 
dispute, authorization for that party to retaliate (that is, withdraw a 
WTO-covered trade concession or obligation owed the defending party). 
Under the rule, the WTO will take the proposed action unless all WTO 
Members present the meeting at which it is being considered vote not to 
do so. Ibid., Arts. 6, 12, 16-17, 21-22.
    \21\ Ibid., Arts. 21:3(c), 22:6.
    \22\ Ibid., Art. 25.
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                          judicial settlement

    Judicial settlement, as a mechanism for settling treaty 
disputes, differs from arbitration in the method of selecting 
the members of the judicial organ involved. In arbitration 
proceedings, the panel of judges is chosen by agreement of the 
parties, while ``judicial settlement presupposes the existence 
of a standing tribunal with its own bench of judges and its own 
rules of procedure which parties to a dispute must accept.'' 
\23\
---------------------------------------------------------------------------
    \23\ Schwarzenberger, p. 241.
---------------------------------------------------------------------------
    An example of a U.S. decision to submit a dispute to 
binding judicial settlement is found in the 1979 United States-
Canadian Maritime Boundary Dispute Settlement Agreement.\24\ 
Under the terms of this treaty, the parties agreed to submit 
their boundary dispute over delimitation of the Gulf of Maine 
Area to a chamber of the International Court of Justice 
pursuant to Article 40 of the Statute of the Court. The Senate 
granted its advice and consent to this agreement with 
amendments, and the treaty was proclaimed by President Reagan 
on February 15, 1982. The dispute was then submitted, and the 
chamber rendered a decision on October 12, 1984.
---------------------------------------------------------------------------
    \24\ United States-Canada Maritime Boundary; Dispute Settlement 
Treaty with Agreements, signed March 29, 1979, 33 U.S.T. 2797, TIAS 
10204.
---------------------------------------------------------------------------
    The Vienna Convention on the Law of Treaties provides for 
recourse to judicial settlement in treaty disputes relating to 
whether or not a particular norm of international law is 
superior or peremptory in character ( jus cogens). If 
resolution of such disputes is not reached within 12 months 
after formal notification of the dispute to the other party, 
any party may invoke the jurisdiction of the International 
Court of Justice unless the parties agree to submit to 
arbitration.\25\ If the Court subsequently reaches a decision, 
the parties are required by the U.N. Charter \26\ to comply 
with it. However, the ability of the Court to have its 
decisions enforced is limited to enforcement by the Security 
Council.\27\ The U.N. Charter leaves enforcement of the Court's 
decisions in such instances to a political decision of the 
council, which is subject to veto by any of the five permanent 
members, including the United States.\28\
---------------------------------------------------------------------------
    \25\ Vienna Convention, Art. 66(a).
    \26\ U.N. Charter, Art. 94.
    \27\ Ibid., Arts. 39-52.
    \28\ Ibid., Arts. 39-52, 23, 27.
---------------------------------------------------------------------------
    Nations may also agree to submit disputes relating to 
treaty interpretation to the jurisdiction of the International 
Court of Justice before specific disputes actually arise. The 
Statute of the International Court (to which the United States 
became a party ipso facto when it became a member of the United 
Nations) provides that states may at any time declare, under 
Article 36(2) of the Statute, that they recognize the 
compulsory jurisdiction of the court in legal disputes in a 
variety of areas including ``the interpretation of a treaty.'' 
In practice, numerous treaties to which the United States is a 
party and to which the Senate has consented contain provisions 
for submission of disputes to the International Court of 
Justice.\29\ In addition, prior to 1985, when the United States 
terminated its Article 36(2)(b) declaration,\30\ the United 
States subscribed to the Court's compulsory jurisdiction 
subject to a Senate reservation known as the ``Connally 
amendment.'' The Connally amendment exempted from the Court's 
compulsory jurisdiction any matter ``essentially within the 
domestic jurisdiction of the United States of America as 
determined by the United States of America.'' \31\
---------------------------------------------------------------------------
    \29\ Examples include the 1969 Consular Convention with Belgium 
(Art. 46), 25 U.S.T. 41, TIAS 7775, and the 1971 Convention on 
Psychotropic Substances (Art. 31), which entered into force for the 
United States on July 15, 1980. TIAS 9725. As of April 8, 1992, the 
Senate had approved 42 multilateral treaties containing provisions for 
submission of disputes to the International Court of Justice. U.S. 
Senate. Consular Conventions, Extradition Treaties, and Treaties 
Relating to Mutual Legal Assistance in Criminal Matters (MLATS), April 
8, 1992, S. Hrg. 102-674, p. 17. In some cases, the Senate has added a 
condition concerning submissions of disputes to the International 
Court. As noted by one commentator, however, the United States ``is 
party to very few treaties entering into force for the United States 
since 1980 that contain compromissory clauses referring disputes to the 
ICJ.'' Noyes, p. 869, n. 170.
    \30\ The United States withdrew its declaration accepting the 
Court's compulsory jurisdiction on October 7, 1985, in response to the 
Court's decision to adjudicate Nicaragua's suit against the United 
States. Letter from Secretary of State George P. Shultz to U.N. 
Secretary, October 7, 1985. International Legal Materials, v. 24, 1985, 
p. 1742.
    \31\ The Connally amendment is a condition of ratification to U.S. 
acceptance of the International Court's compulsory jurisdiction. It is 
contained in the Senate's resolution of advice and consent on the U.S. 
declaration of adherence to the Court's jurisdiction. See S. Res. 196, 
79th Cong., 2d Sess., Congressional Record, v. 92, Aug. 1-2, 1946, pp. 
10621, 10692, 10705-10706, for the text of S. Res. 196 as finally 
adopted. For the text of the Presidential declaration incorporating S. 
Res. 196, of Aug. 2, 1946, see 61 Stat. 1218, TIAS No. 1598 (1946). S. 
Res. 196 was agreed to by a vote of 60 yeas, 2 nays and 34 not voting.
---------------------------------------------------------------------------
    The Connally amendment further qualified U.S. acceptance of 
the Court's compulsory jurisdiction in certain instances when 
disputes involving multilateral treaties were involved. Under 
the provisions of the amendment, U.S. unqualified acceptance of 
the Court's compulsory jurisdiction did not apply to:
          (c) Disputes arising under a multilateral treaty, 
        unless, (1) all Parties to the treaty, affected by the 
        decision are also parties to the case before the Court, 
        or (2) the United States of America specifically agrees 
        to jurisdiction.\32\
---------------------------------------------------------------------------
    \32\ S. Res. 196, supra note 30. This is referred to as the 
``Vandenberg amendment,'' but it is generally included when the term 
``Connally amendment'' is used.

    This Senate condition of ratification may be important in 
relation to the Vienna Convention because the convention 
provides that disputes involving peremptory norms of 
international law be submitted to the compulsory jurisdiction 
of the International Court. In contrast, the Connally amendment 
specifically reserved for the United States the option of not 
submitting treaty interpretation disputes to the International 
Court insofar as such disputes might involve matters 
essentially within the domestic jurisdiction of the United 
States as determined by the United States.
    The Vienna Convention has not yet been ratified by the 
United States and remains pending before the Senate Foreign 
Relations Committee. But should the Senate give its advice and 
consent, unqualified Senate approval of its dispute settlement 
mechanisms would thus appear to broaden significantly U.S. 
acceptance of the Court's jurisdiction. Some might consider 
this to be contrary to the spirit of the Connally Reservation 
which specifically attempted to preserve for the United States 
the option of disputes concerning ``the interpretation of a 
treaty'' insofar involve ``matters which are essentially within 
the domestic jurisdiction in any further consideration of the 
Vienna Convention.\33\
---------------------------------------------------------------------------
    \33\ The Connally amendment has been the subject of much 
controversy. On May 20, 1974, the Senate passed a sense of the Senate 
resolution which bears on the Connally amendment. The resolution, 
advisory in nature, expressed the sense of the Senate that the 
President should undertake negotiations with other countries that have 
qualified their acceptance of the compulsory jurisdiction of the 
International Court to have each party agree to accept the Court's 
jurisdiction without reservation. See Rague, M. The Reservation of 
Power and the Connally Amendment. New York University Journal of 
International Law and Politics, v. 11, 1978, pp. 350-355. The executive 
branch position on the Connally Reservation has been that ``[t]he 
Department of State is on record that the Reservation does not provide 
the United States with any substantial benefit, and every 
Administration since that of President Eisenhower has urged its 
repeal.'' U.S. Department of State. Reform and Restructuring of the 
U.N. System, Selected Documents No. 8, 1978, pp. 13-16, and U.S. 
Department of State. Digest of United States Practice in International 
Law 1978. 1980, p. 1567.
---------------------------------------------------------------------------
    In giving its advice and consent to the Genocide Convention 
providing for the submission of disputes to the International 
Court of Justice, the Senate added a condition requiring the 
specific consent of the United States. The condition specified:
          (1) That with reference to Article IX of the 
        Convention, before any dispute to which the United 
        States is a party may be submitted to the jurisdiction 
        of the International Court of Justice under this 
        article, the specific consent of the United States is 
        required in each case.\34\
---------------------------------------------------------------------------
    \34\ Congressional Record, v. 132, Feb. 19, 1986, p. 2349.
---------------------------------------------------------------------------

                       B. Rules of Interpretation

    The dispute settlement procedures established by the Vienna 
Convention also raise another issue of importance to the 
Senate, namely, that the Vienna Convention provides rules for 
treaty interpretation which differ from those traditionally 
applied by the U.S. courts. This may be important to the extent 
that the Connally Reservation may have been intended not only 
to qualify compulsory U.S. submission to an international 
tribunal (that is, to foreign judges), but also to avoid 
compulsory submission to that tribunal's law.\35\
---------------------------------------------------------------------------
    \35\ Note that the issue of whether or not to submit to foreign 
law, as well as to foreign judges, was one of the main issues in 
contentions against repeal of the Connally amendment. See Stromberg, 
Ruth, and Zafren, Daniel Hill. The Connally Amendment: The United 
States' Self-Judging Reservation to the Compulsory Jurisdiction of the 
International Court of Justice. Library of Congress, Legislative 
Reference Service, Oct. 31, 1968, p. 8.
---------------------------------------------------------------------------
    The Vienna Convention codifies existing international rules 
of treaty interpretation,\36\ which differ from the rules of 
treaty interpretation as applied by U.S. courts.\37\ In 
essence, the convention stresses ``the dominant position of the 
text itself in the interpretative process,'' \38\ whereas U.S. 
courts are more apt to permit supplementary means of 
interpretation if necessary.\39\
---------------------------------------------------------------------------
    \36\ Vienna Convention, Arts. 31-32.
    \37\ Rest. 3d, Sec. 325, Comment g.
    \38\ Rosenne, Shabtai. Interpretation of Treaties in the 
Restatement and the International Law Commission's Draft Articles: A 
Comparison. Columbia Journal of Transnational Law, v. 5, 1966, p. 221.
    \39\ Rest. 3d, Sec. 325, Comment g and Reporters' Note 1.
---------------------------------------------------------------------------
    The Vienna Convention provides that a treaty be 
``interpreted in good faith in accordance with the ordinary 
meaning to be given to the terms of the treaty in their context 
and in the light of its object and purpose.'' \40\ The context 
of the treaty for interpretation purposes is generally limited 
to preambles, annexes, agreements relating to the agreement, 
and subsequent agreements which relate to the interpretation of 
the treaty, or subsequent practice which establishes agreement 
of the parties regarding interpretations.\41\ Supplementary 
means of interpretation (such as the preparatory work of the 
treaty) are not allowed under the convention unless application 
of the earlier rule would lead to a manifestly absurd or 
unreasonable result.\42\ Thus, except for unusual 
circumstances, the convention would exclude as aids to 
interpretation such items as the preparatory work of the treaty 
and the circumstances of its conclusion.\43\
---------------------------------------------------------------------------
    \40\ Vienna Convention, Art. 31.
    \41\ Ibid.
    \42\ Ibid., Art. 32.
    \43\ See Kearney, Richard D. and Dalton, Robert E. The Treaty on 
Treaties. American Journal of International Law, v. 64, 1970, p. 520.
---------------------------------------------------------------------------
    In contrast, current U.S. application of international law 
in treaty interpretation aims at ascertaining the meaning 
intended by the parties in the light of all relevant factors. 
Consequently, U.S. courts have not been hesitant to react to 
travaux preparatoires.\44\
---------------------------------------------------------------------------
    \44\ Rest. 3d, Sec. 325, Reporters' Note 1.
---------------------------------------------------------------------------
    Relevant factors may include the ordinary meaning of words 
in context, the title of the agreement and statements of 
purpose, the circumstances of negotiation, negotiating history, 
unilateral statements of understanding, subsequent practice, 
change of circumstances, compatibility with international law 
and general principles of law, and differences between 
languages.\45\
---------------------------------------------------------------------------
    \45\ Ibid., Sec. 325, Comments and Reporters' Notes.
---------------------------------------------------------------------------
    Furthermore, when interpreting a treaty under domestic law, 
U.S. courts include as relevant matters indications of U.S. 
intent in making the agreement,\46\ as well as the executive 
branch's interpretation of the agreement's meaning.\47\ U.S. 
courts generally assign ``great weight'' to such executive 
branch interpretation of an international agreement.\48\ Thus, 
for example, in 1933, the U.S. Supreme Court in deciding 
whether a particular offense was extraditable under the 
Extradition Convention with Great Britain of 1899, noted the 
treaty's construction by the executive branch as a factor to be 
considered in reaching its decision to extradite the 
appellant.\49\ The U.S. Supreme Court noted, similarly, in 1961 
that ``while courts interpret treaties for themselves, the 
meaning given them by the departments of government 
particularly charged with their negotiation and enforcement is 
given great weight.'' \50\
---------------------------------------------------------------------------
    \46\ For example, the legislative history of a Senate reservation 
to a treaty might be considered in ascertaining its intent.
    \47\ Rest. 3d, Sec. 326(2).
    \48\ Ibid., Sec. 326(2), Reporters' Note 4.
    \49\ Factor v. Laubenheimer, 290 U.S. 276, 294-295 (1933).
    \50\ Kolovrat v. Oregon, 336 U.S. 187 (1961). For recent examples 
of judicial treaty interpretation, see El Al Israel Airlines, Ltd. v. 
Tsui Yuan Tseng, 525 U.S. 155, 167-174 (1999); Zicherman v. Korean Air 
Lines Co. Ltd., 516 U.S. 217, 226-228 (1996), Sale v. Haitian Centers 
Council, Inc., 509 U.S. 155, 177-188 (1993), Itel Containers 
International Corp. v. Huddleston, 507 U.S. 60, 64-69 (1993), and 
United States v. Stuart, 489 U.S. 353 (1989).
---------------------------------------------------------------------------
    The issue of treaty re-interpretation by the executive 
branch after Senate advice and consent and subsequent 
ratification by the parties has been an item of recent interest 
to the Senate. The Antiballistic Missile (ABM) Treaty between 
the United States and the former Soviet Union was approved by 
the Senate in 1972 and subsequently ratified. The treaty 
restricted the parties' use of ABM systems. Subsequently, in 
1985, the Reagan Administration sought to ``reinterpret'' the 
treaty to permit the development of mobile space-based 
antiballistic systems.\51\ The Senate Foreign Relations 
Committee responded by proposing S. Res. 167, the ABM Treaty 
Interpretation Resolution.\52\ Although never acted on by the 
Senate, the resolution focused attention on the problem of 
reinterpretation. In effect, it concluded that the only 
interpretation of a treaty that is valid and constitutional is 
that understood by the Senate at the time of its formal 
approval. Specifically, Section (2) of the Resolution provided 
as follows:
---------------------------------------------------------------------------
    \51\ The Clinton Administration announced in 1993 that it had 
returned to the traditional interpretation that the ABM Treaty 
prohibits the development, testing, and deployment of sea-based, space-
based, and mobile land-based ABM systems and components without regard 
for technology utilized. Letter of July 13, 1993, from Thomas Graham, 
Jr., Acting Director of the U.S. Arms Control and Disarmament Agency, 
to Senator Pell. See Appendix 10.
    \52\ See U.S. Senate. Committee on Foreign Relations. The ABM 
Interpretation Resolution. S. Rept. 100-164, 100th Cong., 1st Sess., 
1987.
---------------------------------------------------------------------------
          (2) Under the United States Constitution--
                  (A) a treaty is properly interpreted in good 
                faith in accordance with the ordinary meaning 
                to be given its terms in light of their context 
                and in light of its object and purpose;
                  (B) the meaning is to be determined in light 
                of what the Senate understands the treaty to 
                mean when it gives its advice and consent;
                  (C) the understanding of the Senate is 
                manifested by any formal expression of 
                understanding by the Senate, as well as by 
                other evidence of what the Senate understood 
                the treaty to mean, including Senate approval 
                or acceptance of, or Senate acquiescence in, 
                interpretations of the treaty by the Executive 
                branch communicated to the Senate;
                  (D) the Senate's understanding of a treaty 
                cannot be informed by other matters of which it 
                is not aware, such as private statements made 
                during the negotiations that were not 
                communicated to the Senate; and
                  (E) any subsequent practice between the 
                Parties in the application of the treaty is to 
                be taken into account in interpreting the 
                treaty.

    Subsequently, in a 1988 move designed to preempt any future 
administration reinterpretation of the INF Treaty,\53\ the 
Senate attached conditions to the resolution of ratification 
designed to bind the President to the interpretation understood 
by the Senate of the provisions of the treaty at the time of 
its consent. The text of the relevant condition stated:
---------------------------------------------------------------------------
    \53\ Treaty Between the United States of America and the Union of 
Soviet Socialist Republics on the Elimination of Intermediate-Range and 
Shorter-Range Missiles, Treaty Doc. 100-11.
---------------------------------------------------------------------------
          (1) Provided, that the Senate's advice and consent to 
        ratification of the INF Treaty is subject to the 
        condition, based on the Treaty Clauses of the 
        Constitution, that--
                  (A) the United States shall interpret the 
                Treaty in accordance with the common 
                understanding of the Treaty shared by the 
                President and the Senate at the time the Senate 
                gave its advice and consent to ratification;
                  (B) such common understanding is based on:
                          (i) first, the text of the Treaty and 
                        the provisions of this resolution of 
                        ratification, and
                          (ii) second, the authoritative 
                        representations which were provided by 
                        the President and his representatives 
                        to the Senate and its Committees, in 
                        seeking Senate consent to ratification, 
                        insofar as such representations were 
                        directed to the meaning and legal 
                        effect of the text of the Treaty; and
                  (C) the United States shall not agree to or 
                adopt an interpretation different from that 
                common understanding except pursuant to Senate 
                advice and consent to a subsequent treaty or 
                protocol, or the enactment of a statute; and
                  (D) if, subsequent to ratification of the 
                Treaty, a question arises as to the 
                interpretation of a provision of the Treaty on 
                which no common understanding was reached in 
                accordance with paragraph (2), that provision 
                shall be interpreted in accordance with 
                applicable United States law.\54\
---------------------------------------------------------------------------
    \54\ Congressional Record, v. 134, May 27, 1988, p. 12849. See also 
discussion of treaty interpretation in Chapter VI.

    The Senate affirmed ``the applicability to all treaties of 
the constitutionally-based principles of treaty interpretation 
set forth in condition (1) in the resolution of ratification 
approved by the Senate on May 27, 1988, with respect to the INF 
Treaty'' in declarations in the Resolutions of Ratification of 
the Treaty on Conventional Armed Forces in Europe (CFE) in 
1991, the START I Treaty in 1992, the Open Skies Treaty in 
1993, the Start II Treaty in 1996, and the Chemical Weapons 
Convention and the Flank Document Agreement to the CFE Treaty 
in 1997.\55\ Since 1997, the Senate has added a modified 
version of this condition to its resolution of ratification on 
all treaties that have come before it.\56\
---------------------------------------------------------------------------
    \55\ CFE Treaty, Exec. Rept. 102-22, p. 81; START I Treaty, Exec. 
Rept. 102-53, pp. 96, 101-102; Open Skies Treaty, Exec. Rept. 103-5, p. 
16; START II Treaty, Exec. Rept. 104-10, p. 46; Chemical Weapons 
Convention, 143 Congressional Record, April 24, 1997, p. S3656 (daily 
ed.); and Flank Document Agreement, Exec Rept. 105-1, pp. 22-24.
    \56\ For further discussion, see Chapter VI, under ``Condition 
Regarding Treaty Interpretation.''
---------------------------------------------------------------------------

                       C. Obligation to Implement

    Disputes involving treaties commonly center on questions 
relating to a party's implementation of its obligations. A 
question that may be raised under U.S. law is whether or not 
Congress has a duty to implement a treaty which is in force 
internationally, but which requires additional legislation or 
implementation or an appropriation of funds to give effect to 
obligations assumed internationally by the United States.
    When implementation of a treaty requires domestic 
legislation or an appropriation of funds, only the Congress can 
provide them.\57\ The issue of the extent of the obligation of 
Congress to appropriate money arose with debate on the Jay 
Treaty, the first treaty concluded under the Constitution. In 
the 1796 debates on appropriations for the treaty, Treasury 
Secretary Hamilton argued that as treaties are the law of the 
land, Congress was obligated to appropriate the money to 
implement them. Members of Congress, notably James Madison, 
maintained that the House was free to decide whether or not to 
approve appropriations regardless of any treaty obligations. 
The House eventually approved the request for funds, but 
appended to its approval a stipulation that it was free not to 
approve such requests in the future.\58\ The House manual notes 
subsequent occasions when the House maintained the position 
that a treaty must depend on a law for its execution of 
stipulations that relate to subjects constitutionally entrusted 
to Congress.\59\
---------------------------------------------------------------------------
    \57\ Article I, Section 9 of the U.S. Constitution provides that 
``no money shall be drawn from the Treasury, but in consequence of 
appropriations made by law.''
    \58\ Byrd, Elbert M. Jr. Treaties and Executive Agreements in the 
United States: Their Separate Roles and Limitations. 1960, pp. 35-39.
    \59\ U.S. Congress. House. Constitution, Jefferson's Manual, and 
Rules of the House of Representatives of the United States. H.R. Doc. 
104-272, Sec. 596, 104th Cong., 2d Sess.
---------------------------------------------------------------------------
    Although the Congress has usually insisted on the right of 
choice not to appropriate funds to implement a perfected 
treaty, historically the funds have generally been forthcoming. 
Exceptions do exist, however, notably past congressional 
reluctance to appropriate the full amounts of money assessed 
for U.S. contributions to the United Nations.\60\
---------------------------------------------------------------------------
    \60\ See generally Bite, Vita. U.S. Withholding and Arrearages to 
the United Nations Regular Budget: Issues for Congress. Congressional 
Research Service Report 91-515F, June 19, 1991; and Bite, Vita. U.N. 
System Funding: Congressional Issues. Congressional Research Service 
Issue Brief for Congress IB86116 (updated December 14, 2000).
---------------------------------------------------------------------------
    The extent of congressional obligation to implement a 
treaty under U.S. law has not been resolved in principle.\61\ 
According to an often-cited authority, Congress has generally 
responded ``to a sense of duty to carry out what the treaty-
makers promised, to a reluctance to defy and confront the 
President (especially after he can no longer retreat), to an 
unwillingness to make the U.S. system appear undependable, even 
ludicrous. But the independence of the legislative power 
(subject only to the Presidential veto as provided in the 
constitution) has given Congress opportunities to interpret the 
need for implementation and to shape and limit it in important 
details; Congress has not always given the President exactly 
the laws he asked for or as much money as he said a treaty 
required.'' \62\
---------------------------------------------------------------------------
    \61\ Henkin, Louis. Foreign Affairs and the United States 
Constitution. 2d ed. 1996, p. 205 (hereafter cited as Henkin). However, 
failure to implement an internationally perfected treaty would 
constitute a violation of obligations assumed by the United States 
under international law. See Memorandum of April 12, 1976, by Monroe 
Leigh, Legal Adviser, Department of State, as quoted in U.S. Department 
of State. Digest of U.S. Practice in International Law 1976. 1977, p. 
221.
    \62\ Henkin, pp. 205-206.
---------------------------------------------------------------------------
    With regard to funding U.S. international obligations, 
Congress, since 1971, has made a number of cuts in 
appropriations for the multilateral development banks. In 1971, 
the administration requested $912.85 million and received only 
$455 million. Although the level of such cuts has varied, they 
have occurred consistently on an annual basis. For fiscal year 
1993, the administration requested $1,785.5 million, the 
Congress appropriated only $1,583.5 million.\63\ This included 
contributions which were less than the administration had 
requested for some multilateral programs and more than the 
administration had requested for others.\64\
---------------------------------------------------------------------------
    \63\ Public Law 102-266, signed April 2, 1992. For a table and 
breakdown of the cuts see Sanford, Jonathan E. U.S. Foreign Policy and 
Multilateral Development Banks. 1982, pp. 126-129 (hereafter cited as 
Sanford 1982).
    \64\ See Sanford, Jonathan E. Multilateral Development Banks: U.S. 
Contributions FY 1990-2001. CRS Report for Congress RS 20792.
---------------------------------------------------------------------------
    Among other things, these events may be seen as evidence of 
the Congress' desire to make clear its right and power to 
specify commitment levels and to make appropriations cuts even 
after approving international agreements.\65\ For example, in 
1974 Congress enacted legislation authorizing the Secretary of 
the Treasury ``to pledge on behalf of the United States to 
pay'' $1.5 billion in four equal annual installments, as the 
U.S. share of the fourth replenishment to the International 
Development Association. In a letter to Treasury Secretary 
William Simon, however, the Senate Appropriations Committee 
stressed that Congress ``was not committed to any given funding 
level until that figure is actually appropriated.'' After the 
administration nonetheless filed papers with the World Bank 
formally committing the United States to an agreement to pay 
this amount,\66\ Congress responded by cutting by $55 million 
the first U.S. payment to the International Development 
Association in what reportedly was an attempt by Congress to 
make clear its dissatisfaction over the commitment issue.\67\ 
Beginning in 1977, Congress had stipulated in its authorization 
acts that the U.S. Government could not make any formal 
commitment until the necessary appropriations legislation was 
enacted. As a recent example, Congress in 1997 required the 
Secretary of the Treasury to obtain the appropriation prior to 
making final commitment for the contribution to the financial 
institution for its eleventh replenishment on behalf of the 
United States.\68\
---------------------------------------------------------------------------
    \65\ For a discussion of the commitment issue generally, see 
Sanford 1982, pp. 152-179.
    \66\ Sanford 1982, p. 171. For the text of the Appropriations 
Committee letter, see U.S. Senate. Foreign Assistance and Related 
Programs Appropriation Bill, 1976. S. Rept. 94-704, 94th Cong., 2d 
Sess., 1976, pp. 165-167.
    \67\ U.S. Congress, House, Foreign Assistance and Related Programs 
Appropriations Bill, 1976, H. Rept. 94-857, 94th Cong., 2d Sess., 1976, 
pp. 50-51. The last portion of the $55 million was ultimately restored 
in fiscal year 1981, well after the schedule provided for in the 
original commitment.
    \68\ Public Law 105-118, Sec. 560(a), 111 Stat. 2425, 22 U.S.C. 
Sec. 284s note (Supp. IV 1999). In 1999, however, Congress, without 
using the appropriations condition employed in earlier years, 
authorized the Secretary of the Treasury, in order ``to fulfill 
commitments of the United States * * * [to] contribute on behalf of the 
United States * * * to the twelfth replenishment of the International 
Development Association''; at the same time, Congress authorized an 
appropriation of $2.41 billion for this purpose. Public Law 106-113, 
Appendix B--H.R. 3422, Sec. 594, 113 Stat. 1501A-122. In 1998, Congress 
added an appropriations condition to authority granted to the United 
States Governor of the International Monetary Fund to consent to an 
increase in the U.S. quota in the Fund equivalent to 10,622,500,000 
Special Drawing Rights. 22 U.S.C. Sec. 286e-1m (Supp. IV 1999), as 
added by Public Law 105-277, Div. A, Sec. 101(d) [title VI, Sec. 608], 
112 Stat. 2681-224.
---------------------------------------------------------------------------
    The Senate may also use its advice and consent to a treaty 
as an opportunity to make clear that appropriation of funds 
will be made subject to the appropriations process on a year-
to-year schedule. In the case of the Treaty of Friendship and 
Cooperation Between the United States and Spain,\69\ the 
President had promised security assistance to Spain over a 5-
year period in exchange for U.S. base rights. The Senate, 
however, conditioned its advice and consent to the treaty on a 
declaration intended to emphasize that appropriation of the 
promised funds could only be done by statutory authorization 
and not by treaty alone.\70\ The pertinent language of the 
Senate declaration involved reads:
---------------------------------------------------------------------------
    \69\ Treaty of Friendship and Cooperation between the United States 
and Spain, signed Jan. 24, 1976, entered into force Sept. 21, 1976, 27 
U.S.T. 3005, TIAS 8360.
    \70\ U.S. Congress, Senate, Treaty of Friendship and Cooperation 
with Spain, S. Exec. Rept. 94-25, 94th Cong., 2d Sess., p. 7. The 
language in this report specified that the committee intends ``to make 
it clear that funds will be made available to carry out the Treaty from 
year to year through the normal appropriations process, including prior 
authorizations procedures'' and * * * ``intends to deal with funding of 
the Treaty commitments for foreign assistance and military sales in the 
regular foreign assistance authorization and appropriation and 
legislation.'' Excerpts from the committee report are also found in 
U.S. Department of State. Digest of United States Practice in 
International Law 1976. 1977, pp. 232-233.
---------------------------------------------------------------------------
        the sums referred to in * * * the Treaty, shall be made 
        available for obligation through the normal procedures 
        of the Congress, including the process of prior 
        authorization, and annual appropriations shall be 
        provided to Spain in accordance with the provisions of 
        foreign assistance and related legislation.\71\
---------------------------------------------------------------------------
    \71\ See S. Exec. Rept. 94-25, and Digest of United States Practice 
in International Law 1976. 1977, p. 232.

    Congress, in the exercise of its appropriation power, can 
also earmark funds for a specific purpose, thereby preventing 
their use for other purposes. The record suggests, however, 
that this has often been held impermissible under the rules of 
multilateral agencies. One example involving funds to implement 
a treaty is found in the 1975 fiscal year appropriations for 
the Inter-American Development Bank. In that year, Congress 
earmarked $50 million of the bank's concessional aid 
specifically for loans to cooperative institutions. The bank, 
however, refused to accept the funds on the ground that its 
charter prohibits acceptance of conditional contributions to 
its regular loan accounts. Congress subsequently rescinded the 
earmarking requirements in its 1976 fiscal year appropriations 
legislation.\72\ In another instance, legislation in October 
1978 prohibited the use of U.S. assessed contributions to the 
United Nations for financing of technical assistance to other 
countries.\73\ President Carter, when signing the bill into 
law, voiced a strong opposition to those restrictions saying 
that ``if allowed to stand, this [congressional] action would 
cause the United States to violate its treaty obligations to 
support the organizations of the United Nations system.'' \74\
---------------------------------------------------------------------------
    \72\ U.S. Congress. Senate. Foreign Assistance and Related Agencies 
Appropriations Bill, 1975. S. Rept. 94-39, 94th Cong., 1st Sess., 1975, 
pp. 151-155 and U.S. Congress. Senate, Foreign Assistance and Related 
Agencies Appropriations Bill, 1976. S. Rept. 94-704, 94th Cong., 2d 
Sess. 1976, pp. 161-162. See also Sanford, Jonathan. U.S. Policy toward 
the Multilateral Development Banks: The Role of Congress. George 
Washington Journal of International Law and Economics, v. 22, 1988, pp. 
49-57.
    \73\ The Department of State, Justice and Commerce, the Judiciary, 
and Related Agencies Appropriations Act, 1979, Public Law 95-431, 92 
Stat. 1021.
    \74\ For the text of the President's statements, see U.S. 
Department of State. Digest of United States Practice in International 
Law 1978. pp. 136-137.
---------------------------------------------------------------------------
    Another method by which Congress has attempted to use the 
appropriations power to influence treaty implementation is 
through sense of the Congress resolutions. Congress has used 
such resolutions to indicate its views about reasonable funding 
required to give effect to a treaty. In 1977 and 1978, Congress 
passed legislation specifying the U.S. share in future 
multilateral development bank funding plans.\75\ In such 
instances, by specifying in advance the limits of its intent to 
commit funds, the Congress hoped to reduce the possibility of 
future congressional-executive branch friction over the issue.
---------------------------------------------------------------------------
    \75\ See Foreign Assistance and Related Programs Appropriations 
Act, 1978, Public Law 95-148, 91 Stat. 1238, for the sense of the 
Senate on future U.S. contributions to the international financial 
institutions. (22 U.S.C. 262c note). See Foreign Assistance and Related 
Programs Appropriations Act, 1979, Public Law 95-481, 92 Stat. 1591, 
for the sense of the Congress on such funding. Note that it is not 
unusual for the executive branch to negotiate and sign agreements 
``subject to the availability of funds.''
---------------------------------------------------------------------------
    More recently, Congress has called for legislative-
executive consultation prior to and during international 
negotiations leading up to agreements involving funds. In 1981, 
Congress added Title XII to the International Financial 
Institutions Act, which states:
        Title XII--Congressional Consultations \76\
---------------------------------------------------------------------------
    \76\ 22 U.S.C. 262g-3. International Financial Institutions Act, 
Public Law 95-118, as amended. Title XII was added by sec. 1361(b) of 
Public Law 97-35.
---------------------------------------------------------------------------
        Sec. 1201. The Secretary of the Treasury or his 
        designee shall consult with the Chairman and the 
        Ranking Minority Member of--
                  (1) the Committee on Banking, Finance, and 
                Urban Affairs of the House of Representatives, 
                the Committee on Appropriations of the House of 
                Representatives, and the appropriate 
                subcommittee of each such committee, and
                  (2) the Committee on Foreign Relations of the 
                Senate, the Committee on Appropriations of the 
                Senate, and the appropriate subcommittee of 
                each such committee, for the purpose of 
                discussing the position of the executive branch 
                and the views of the Congress with respect to 
                any international negotiations being held to 
                consider future replenishments or capital 
                expansions of any multilateral development bank 
                which may involve an increased contribution or 
                subscription by the United States. Such 
                consultation shall be made (A) not later than 
                30 days before the initiation of such 
                international negotiations, (B) during the 
                period in which such negotiations are being 
                held, in a frequent and timely manner, and (C) 
                before a session of such negotiations is held 
                at which the United States representatives may 
                agree to such a replenishment or capital 
                expansion.

    Similarly, the Foreign Operations Appropriation Act for 
Fiscal Year 1993 called for consultation prior to negotiations 
of agreements on funding multilateral financial institutions, 
stating the following:
        Prior Consultations on IFI Replenishments \77\
---------------------------------------------------------------------------
    \77\ Foreign Operations, Export Financing, and Related Programs 
Appropriations Act, 1993, Public Law 102-391.
---------------------------------------------------------------------------
          Sec. 537. Prior to entering into formal negotiations 
        on any replenishment for any international financial 
        institution or multilateral development bank, the 
        Secretary of the Treasury shall consult with the 
        Committees on Appropriations and appropriate 
        authorizing committees on the United States position 
        entering those negotiations.


 IX. AMENDMENT OR MODIFICATION, EXTENSION, SUSPENSION, AND TERMINATION 
           OF TREATIES AND OTHER INTERNATIONAL AGREEMENTS \1\
---------------------------------------------------------------------------

    \1\ Prepared by David M. Ackerman, Legislative Attorney.
---------------------------------------------------------------------------
                              ----------                              


                          A. Introduction \2\
---------------------------------------------------------------------------

    \2\ In determining the legal framework governing the subjects of 
this chapter, considerable reliance has been placed on the Vienna 
Convention on the Law of Treaties and the American Law Institute's 
Restatement (Third) of the Foreign Relations Law of the United States 
(1987). Some use has also been made of the edition of the Restatement 
published in 1965 and, on occasion, a tentative draft Restatement which 
contained the ALI's study drafts leading up to the revisions that 
appear in the Restatement (Third). Other major sources of information 
have been the various editions of the Department of State's Digest of 
International Law, notably the Hackworth, Whiteman, and Nash (Leich) 
editions, supplemented by the annual volumes that appeared from 1973-
1980 and the post-1988 notes on the ``Contemporary Practice of the 
United States Relating to International Law'' that appear in the 
quarterly American Journal of International Law. Reference has also 
been made to such treatises as Butler, Charles Henry. The Treaty-Making 
Power of the United States Senate. New York. The Banks Law Publishing 
Company, 1902; Crandall, Samuel B. Treaties: Their Making and 
Enforcement. Washington, D.C., John Byrne & Company, 1916; and Henkin, 
Louis. Foreign Affairs and the United States Constitution (2d ed.). 
Oxford. Clarendon Press, 1996. The Senate Foreign Relations Committee's 
biennial reports of its legislative activities have in recent years 
also provided helpful information with respect to legislative, 
principally Senate, developments. For summaries of the committee's 
activities in the 101st, 102d, 103d, and 104th Congresses, see S. Rept. 
102-30 (1991); S. Rept. 103-35 (1993); S. Rept. 104-21 (1995); and S. 
Rept. 105-8 (1997), respectively.
---------------------------------------------------------------------------
    The Constitution in clear and unmistakable terms settles 
only three matters with respect to treaties: \3\ it establishes 
the treaty power and identifies the treatymaking principals; 
\4\ it provides that self-executing treaties together with the 
Constitution and Federal laws constitute the supreme law of the 
land; \5\ and it withholds from the several states of the 
United States authority to enter into any treaty.\6\ On a whole 
range of concerns affecting the subject of treaties, including 
amendment or modification, extension, suspension, and 
termination, the Constitution is silent. More than 200 years of 
practice and judicial decisions have filled some of the 
mentioned and other gaps,\7\ but a number of treaty-related 
issues persist without definitive resolution.
---------------------------------------------------------------------------
    \3\ International law does not distinguish between agreements 
designated as treaties and other international agreements; all such 
agreements are denominated as treaties. In domestic law, however, the 
word ``treaty'' means an international agreement made by the President 
with the advice and consent of the Senate, two-thirds of the Senators 
present concurring. Other international agreements, also from a purely 
domestic perspective, include executive agreements pursuant to treaty, 
congressionally-authorized executive agreements, and sole executive 
agreements or executive agreements more or less exclusively based on 
Presidential powers. See Chapters III and IV.
    \4\ Article II, sec. 2, Clause 2.
    \5\ Article VI, sec. 2.
    \6\ Article I, sec. 10, Clause 1.
    \7\ For example, a treaty may not appropriate funds. Turner v. 
American Baptist Missionary Union, 24 F. Cas. 344 (No. 14, 251) (C.C. 
Mich. 1852). A treaty may not enact criminal law. Compare United States 
v. Hudson & Goodwin, 7 Cranch (11 U.S.) 32 (1812); United States v. 
Coolidge, 1 Wheat. (14 U.S.) 415 (1816); cf. The Estrella, 4 Wheat. (17 
U.S.) 298 (1819).
---------------------------------------------------------------------------
    Neither the records of the Proceedings at the 
Constitutional Convention \8\ nor those of the ratifying 
conventions in the states \9\ indicate the reasons for these 
glaring omissions. It may be, as one commentator has suggested 
in discussing treaty termination, that ``perhaps the Framers 
were concerned only to check the President in `entangling' the 
United States; `disentangling' is less risky and may have to be 
done quickly, and is often done piecemeal, or ad hoc, by 
various means and acts.'' \10\
---------------------------------------------------------------------------
    \8\ See, generally, Farrand, Max. The Records of Convention of 1787 
(4 vols.), Yale University Press (1966).
    \9\ See, generally, Elliot, Jonathan. The Debates in the Several 
State Conventions on the Adoption of the Federal Constitution (5 
vols.), Burt Franklin, New York (1888 ed.)
    \10\ Henkin, Louis. Foreign Affairs and the United States 
Constitution (2d ed.), Clarendon Press (1996), p. 212 (hereafter cited 
as Henkin).
---------------------------------------------------------------------------
    The constitutional treatment of other kinds of 
international agreements, designated executive agreements, is 
even more sparse than that of treaties. The Constitution does 
not expressly authorize the making of international agreements 
other than treaties, but executive agreements on a variety of 
subjects and of varying degrees of importance have been common 
from the earliest of times under the Constitution.\11\
---------------------------------------------------------------------------
    \11\ See Chapters III and IV.
---------------------------------------------------------------------------
    Although these domestic legal matters are of more than 
passing interest, they have not prevented the United States 
from amending or modifying, extending, suspending, and 
terminating international agreements. As a state in the 
international community of states, the United States is subject 
to international law, the law that governs relations between 
states.\12\ Accordingly, the United States, constitutional 
silence notwithstanding, is invested with powers which belong 
to all independent nations. In a celebrated passage from a 
landmark Supreme Court decision, this idea was expressed as 
follows:
---------------------------------------------------------------------------
    \12\ American Law Institute, Restatement (Third) of the Foreign 
Relations Law of the United States, vol. 1, American Law Institute 
Publishers (1987), Sec. 1 (hereafter cited as Restatement (Third) or 
Rest. 3d).
---------------------------------------------------------------------------
          It results that the investment of the Federal 
        government with the powers of external sovereignty did 
        not depend upon the affirmative grants of the 
        Constitution. The powers to declare and wage war, to 
        conclude peace, to make treaties, to maintain 
        diplomatic relations with other sovereignties, if they 
        had never been mentioned in the Constitution, would 
        have vested in the Federal government as necessary 
        concomitants of nationality. * * * As a member of the 
        family of nations, the right and power of the United 
        States in that field are equal to the right and power 
        of other members of the international family. 
        Otherwise, the United States is not completely 
        sovereign. The  power  to  acquire  territory  by  
        discovery  and  occupation * * *, the power to expel 
        undesirable aliens * * *, the power to make such 
        international agreements as do not constitute treaties 
        in the constitutional sense * * *, none of which is 
        expressly affirmed by the Constitution, nevertheless 
        exist as inherently inseparable from the conception of 
        nationality. This the court recognized, and * * * found 
        the warrant for its conclusions not in the provisions 
        of the Constitution, but in the law of nations.\13\
---------------------------------------------------------------------------
    \13\ United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 
318 (1936) (emphasis added).

    As a general rule, international law and domestic law 
regarding the amendment or modification, extension, suspension, 
and termination of treaties and other international agreements 
are in substantial harmony. International law recognizes the 
power to accomplish each of these ends in the proper 
circumstances and allows and accommodates adherence to domestic 
legal procedures relating to the manner of their execution. 
However, as the fundamental rule of treaties is that they are 
to be observed,\14\ provisions of internal law are generally 
not available as a justification for the failure of a party to 
carry out a treaty.\15\
---------------------------------------------------------------------------
    \14\ Pacta sunt servanda or ``agreements must be kept'' is a 
fundamental rule of international law. Article 26 of the Vienna 
Convention on the Law of Treaties, Senate. Ex. L, 92d Cong., 1st Sess. 
(April 24, 1970), states the rule as follows: ``Every treaty in force 
is binding upon the parties to it and must be performed by them in good 
faith.''
    \15\ With regard to internal law and the observance of treaties, 
Article 27 of the Vienna Convention on the Law of Treaties provides, in 
part, as follows: ``A party may not invoke the provisions of its 
internal law as justification for its failure to perform a treaty.'' 
However, an exception is allowed under Article 46 of the Convention in 
one specific circumstance, namely, where the violation of internal law 
``was manifest and concerned a rule of * * * internal law of 
fundamental importance.''
---------------------------------------------------------------------------
    It can be argued that amendment or modification, extension, 
suspension, and termination of a treaty are essentially the 
forging of new agreements and that, therefore, each is subject 
to the same rules as apply to the making of a treaty, that is, 
conjoint action by the President and the Senate. However, that 
conclusion is not established by an unbroken line of consistent 
practice. By and large the participation of the Senate with 
respect to amendment or modification and extension of treaties 
seems fairly well established; suspension seems largely left to 
Presidential determination; termination has happened in such a 
variety of ways that it has been said that ``[n]o settled rule 
or procedure has been followed.'' \16\ But even the supposed 
iron-clad domestic rule that the amendment or modification of a 
treaty has to be accomplished by an instrument of equal dignity 
which is subject to Senate approval has been departed from on 
at least a pair of notable occasions. ``For example, both the 
Italian and Japanese peace treaties have been altered by 
executive agreements not subject to Senate approval.'' \17\ 
Moreover, to the extent that congressionally-authorized 
executive agreements have become the legal equivalent of 
treaties,\18\ it can be contended that the amendment or 
modification and extension of a treaty could be accomplished by 
such an executive agreement, although this does not appear to 
have happened in practice.
---------------------------------------------------------------------------
    \16\ Whiteman, Marjorie. Digest of International Law, 1970. v. 14, 
460 (hereafter cited as 14 Whiteman). Compare S. Rept. 97, 34th Cong., 
1st Sess. See, generally, U.S. Congress. Senate. Committee on Foreign 
Relations. Termination of Treaties: The Constitutional Allocation of 
Power. Committee Print. 95th Cong., 2d Sess. (1978).
    \17\ U.S. Congress. Senate. Committee on Foreign Relations. 
International Agreements: An Analysis of Executive Regulations and 
Practices. Committee Print. 95th Cong., 1st Sess., 10, n. 16 (1977).
    \18\ Rest. 3d, supra, note 12, Sec. 303, Comment e, p. 161: ``The 
prevailing view is that the Congressional-Executive agreement can be 
used as an alternative to the treaty method in every instance.''
---------------------------------------------------------------------------
    Judged as a purely domestic legal matter, the amendment or 
modification, extension, suspension, and termination of an 
executive agreement concluded by the President can be 
accomplished by the President alone.\19\ This conclusion seems 
to be invariably true in the case of executive agreements 
concluded by virtue of exclusive Presidential authority and 
frequently but not always true with respect to executive 
agreements authorized by statute or treaty.\20\ In the two last 
mentioned circumstances, the authorizing statute or treaty may 
conceivably condition amendment or modification, extension, 
suspension, and termination on senatorial or congressional 
approval.\21\
---------------------------------------------------------------------------
    \19\ Ibid., Sec. 339, Reporters' Note 2.
    \20\ ``No one has questioned the President's authority to terminate 
sole executive agreements. Where the Constitution lodges the power to 
terminate * * * a congressional-executive agreement has been an issue 
at various times in the history of the United States. Practice has 
varied, the President sometimes terminating an agreement on his own 
authority, sometimes when requested to do so by Congress or by the 
Senate alone.'' Ibid. See also Hackworth, Green Haywood. Digest of 
International Law, 1927. v. V, p. 429 (hereafter cited as V Hackworth).
    \21\ ``Congress could impose such a condition in authorizing the 
President to conclude an agreement that depended on Congressional 
authority.'' Restatement of the Law: Foreign Relations Law of the 
United States (Revised) (Tentative Draft No. 1, 1980), p. 193 
(hereafter cited as Draft Restatement).
---------------------------------------------------------------------------
    Finally, treaties and executive agreements generally may 
both be superseded by an act of Congress in so far as their 
domestic consequences are concerned.\22\ However, legislation 
alone does not affect the international obligation of the 
United States under a treaty or executive agreement.
---------------------------------------------------------------------------
    \22\ Head Money Cases, 112 U.S. 580 (1884); Whitney v. Robertson, 
124 U.S. 581 (1888); The Chinese Exclusion Case, 130 U.S. 581 (1889). 
The fact that this results in a violation of international law by the 
United States does not appear to be of any constitutional significance. 
Henkin, supra, note 2, p. 485, note 130.
---------------------------------------------------------------------------
    Several post-World War II developments have impacted the 
Senate's role with respect to international agreements. One of 
these developments has been the shift to executive agreements 
and away from treaties, a subject documented elsewhere in this 
volume. That shift, arguably, has diminished the role of the 
Senate and given greater prominence to Presidential initiative 
and, in the case of congressionally-authorized executive 
agreements, to the House of Representatives. As previously 
noted, executive agreements have been used in at least two 
instances to modify treaties.
    The emergence and growth in multiparty or multilateral 
international agreements seems also to have had a decided 
impact on Senate consideration of amendments and modifications. 
For instance, in discussing other countries' reservations to 
treaties with the United States at a time when bilateral 
treaties were the norm, the Solicitor of the Department of 
State wrote some years ago that ``[i]f after the ratification 
of an international treaty, by the United States, this 
Government should be asked to agree to reservations on the part 
of some other nation, I think that the Executive could not give 
such agreement without the consent of the Senate.'' \23\ But 
that does not appear to be the case with respect to 
reservations to multilateral agreements. ``[I]n 1966, the 
Office of the Legal Adviser to the Department of State asserted 
flatly that since 1946 not a single reservation to a 
multilateral treaty had been submitted to the Senate for 
approval.'' \24\ The Restatement (Third) similarly observes:
---------------------------------------------------------------------------
    \23\ Wildhaber, Luzius. Treaty-Making Power and the Constitution. 
Basel and Stattgart, Helbing & Lichtenhahn, 1971, p. 67.
    \24\ Ibid.
---------------------------------------------------------------------------
          If another party formulates a reservation to a treaty 
        to which the United States is a party, the reservation 
        cannot become effective as to the United States, 
        through acceptance or failure to object, unless the 
        Senate has given its consent. In multilateral 
        agreements, however, the Executive Branch has developed 
        the practice of accepting or acquiescing in 
        reservations by another state, entered after United 
        States adherence to the treaty, without seeking Senate 
        consent * * *.\25\
---------------------------------------------------------------------------
    \25\ Rest. 3d, supra, note 12, Sec. 314, Comment c.

    This practice is due, perhaps, to the large number of 
signatories frequently involved in multilateral agreements and 
the sometimes technical and complex nature of their subject 
matter.
    A related practice that has begun to occur with increasing 
frequency is the inclusion in some multilateral agreements of 
provisions barring reservations.\26\ The Senate Committee on 
Foreign Relations has protested that no-reservations clauses 
intrude on the Senate's constitutional prerogatives but, 
nonetheless, has given its advice and consent to a number of 
such treaties.\27\
---------------------------------------------------------------------------
    \26\ See, for example, Article 24 of the United Nations Framework 
Convention on Climate Change, TIAS ____ (1994); Article 24 of the 
Protocol on Environmental Protection to the Antarctic Treaty, TIAS ____ 
(1998); Article 25 of the Kyoto Protocol to the United Nations 
Framework Convention on Climate Change, FCCC/CP/L.7/Add.1 (1997) (not 
yet submitted to the Senate); Article 18 of the Vienna Convention for 
the Protection of the Ozone Layer, TIAS 11097 (1988); Article 309 of 
the United Nations Convention on the Law of the Sea, Tr. Doc. 103-39 
(submitted to the Senate on October 7, 1994); Article 10 of the South 
Pacific Regional Environment Programme Agreement, Tr. Doc. 105-32 
(November 7, 1997); United Nations Convention To Combat Desertification 
in Countries Experiencing Drought, Particularly in Africa, With 
Annexes, Tr. Doc. 104-29 (approved by the Senate on October 18, 2000); 
and Article 23 of the Inter-American Convention on Sea Turtles, Tr. 
Doc. 105-48 (approved by the Senate on September 20, 2000).
    \27\ The Senate Committee on Foreign Relations has generally voiced 
its objection to no-reservations clauses in its reports on the treaties 
which contain them. Typical is its report recommending Senate advice 
and consent to the Protocol on Environmental Protection to the 
Antarctic Treaty, which stated as follows: ``* * * [T]he Senate's 
approval of these treaties should not be construed as a precedent for 
such clauses in future agreements with other nations requiring the 
Senate's advice and consent * * *. The President's agreement to such a 
prohibition can not constrain the Senate's advice and consent to a 
treaty subject to any reservation it might determine is required by the 
national interest.'' S. Exec. Rept. 102-54 (September 22, 1992), at 7.
    More recently, however, the committee has expressed its objection 
in the form of declarations included in the Senate's resolutions of 
ratification. A declaration in the resolution of ratification on the 
Inter-American Convention on Sea Turtles, which was approved by the 
Senate on September 20, 2000, stated as follows: ``* * * [I]t is the 
sense of the Senate that this `no reservations' provision has the 
effect of inhibiting the Senate in its exercise of its constitutional 
duty to give advice and consent to ratification of a treaty, and the 
Senate's approval of these treaties should not be construed as a 
precedent for acquiescence to future treaties containing such 
provisions.'' S. Exec. Rept. 106-18 (September 5, 2000), at 5.
    The Senate had previously included a similar declaration in its 
resolution of ratification on the United Nations Convention Relating to 
the Conservation and Management of Straddling Fish Stocks and Highly 
Migratory Fish Stocks when it gave its advice and consent to the 
convention on June 27, 1996. See 142 Congressional Record, June 27, 
1996, p. S7210 (daily ed.). The Senate also included a sense of the 
Senate declaration in its resolution of ratification on the CWC, 
approved on April 24, 1997, which stated as follows: ``SENSE OF THE 
SENATE.--It is the sense of the Senate that--(i) the advice and consent 
given by the Senate in the past to ratification of treaties containing 
provisions which prohibit amendments or reservations should not be 
construed as a precedent for such provisions in future treaties; (ii) 
United States negotiators to a treaty should not agree to any provision 
that has the effect of inhibiting the Senate from attaching 
reservations or offering amendments to the treaty; and (iii) the Senate 
should not consent in the future to any article or other provision of 
any treaty that would prohibit the Senate from giving its advice and 
consent to ratification of the treaty subject to amendment or 
reservation.'' 143 Congressional Record, April 24, 1997, p. S3656 
(daily ed.).
---------------------------------------------------------------------------
    Another development that has had implications for the 
Senate's role with respect to multilateral agreements is the 
evolving practice of tacit amendment. The practice takes 
various forms--Presidential acquiescence, nonsubmission of 
reservations by other parties, implementing bodies with the 
authority to make changes, and amendment by fewer than all of 
the parties--and has not escaped the Senate Foreign Relations 
Committee's attention. The committee has at times sought to 
establish some rough ground rules to ensure committee oversight 
of such practices (as distinguished from formal Senate approval 
by two-thirds vote) while not unduly delaying the amending 
process.\28\ But the practice developed under these ground 
rules and committee experience associated with them apparently 
have not been rigorously analyzed.
---------------------------------------------------------------------------
    \28\ S. Exec. Rept. 96-36, 96th Cong., 2d Sess. (1980), p. 2. See 
also discussion of tacit acceptance of reservations in Chapter VII.
---------------------------------------------------------------------------
    Thus, theory and past practice regarding the necessity for 
conjoint action by the President and the Senate on treaty-
related matters are not always clear or consistent. As the 
Senate Committee on Foreign Relations indicated in 1979, these 
developments are largely the result of expediency and the press 
of time and circumstances.\29\ They also illustrate once again 
that
---------------------------------------------------------------------------
    \29\ S. Rept. 96-119, 96th Cong., 1st Sess. (1979), p. 5.
---------------------------------------------------------------------------
          The actual art of governing under our Constitution 
        does not and cannot conform to * * * definitions * * * 
        based on isolated clauses or even single Articles torn 
        from context.\30\ * * * [I]t is doubtless both futile 
        and perhaps dangerous to find any epigrammatical 
        explanation of how this country has been governed.\31\
---------------------------------------------------------------------------
    \30\ Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 
(1952) (Jackson, J., concurring).
    \31\ Dames & Moore v. Regan, 453 U.S. 654, 660 (1981).
---------------------------------------------------------------------------

                   B. Amendment and Modification \32\
---------------------------------------------------------------------------

    \32\ The Vienna Convention on the Law of Treaties uses the word 
``amendment'' to denote changes in an international agreement 
applicable to all of the parties and the word ``modification'' to refer 
to changes in an international agreement applicable to only some of the 
parties. Arts. 40 and 41. The distinction has implications only with 
respect to multilateral agreements, not bilateral ones.
---------------------------------------------------------------------------

                                treaties

    The amendment of a binding international agreement may be 
accomplished in a variety of ways including, among others, in 
accordance with provisions included for that purpose in the 
agreement, by the consent of the parties, and by entry into 
force of a new, subsequent agreement on the same subject 
involving the same parties.
    The inclusion in international agreements of provisions for 
their modification is a fairly common practice. It reflects the 
commonsense view that the conditions which prevail at the time 
the parties negotiate an agreement may change and that a 
procedure to adjust to new conditions is the height of prudence 
and wisdom.
    Amendment or modification of an international agreement by 
consent of the parties is recognition of the fact that consent 
is the foundation of international agreements. Accordingly, the 
parties are at liberty to change an international agreement 
regardless of its terms. For similar reasons a later agreement 
on the same subject involving the same parties that expressly 
or by implication modifies an earlier agreement will be 
regarded as effecting the resulting change.
    The Vienna Convention on the Law of Treaties embraces these 
broad principles in Article 39 of Part IV, captioned ``General 
rule regarding the amendment of treaties.'' It provides that
          [a] treaty may be amended by agreement between the 
        parties. The rules laid down in Part II [relating, 
        among other things, to the conclusion of treaties] 
        apply to such an agreement except in so far as the 
        treaty may otherwise provide.

    This general principle applies to the amendment of 
bilateral and multilateral treaties alike.
    Article 40, in turn, sets out both procedural and 
substantive rules for the amendment of a multilateral treaty in 
the strict Vienna Convention sense of a revision that applies 
to all of the parties. Article 40 provides that, unless the 
treaty in question provides otherwise, the following four 
considerations apply to an amendment:
          (1) Notice of any proposal to amend a multilateral 
        treaty as between all the parties has to be 
        communicated to every party, and each party has the 
        right to take part in the decision as to the action in 
        regard to the proposal and to take part in the 
        negotiation and conclusion of any agreement to amend 
        the treaty.
          (2) Every state entitled to become a party to the 
        treaty is also entitled to become a party to the treaty 
        as amended.
          (3) An amending agreement does not bind a party to 
        the treaty which does not become a party to the 
        amending agreement; the unamended treaty continues to 
        govern the mutual rights and obligations as between 
        parties one of which is not and one of which is bound 
        by the amending agreement.\33\
---------------------------------------------------------------------------
    \33\ Article 40 references Article 30(4)(b), which provides that in 
instances when one state is a party to both an original treaty and a 
subsequent treaty that alters the first and another state is a party 
only to the first treaty, their mutual rights and obligations are 
governed by the treaty to which they both are parties.
---------------------------------------------------------------------------
          (4) In the absence of an expression to the contrary, 
        a state which becomes a party after the amending 
        agreement has come into force is to be considered as 
        (a) a party to the treaty as amended and (b) a party 
        also to the unamended treaty in its relations with any 
        party which is not bound by the amending agreement.

    Finally, Article 41 deals with the modification of a 
multilateral treaty in the strict Vienna Convention sense of a 
change that is intended to apply to fewer than all of the 
parties to an international agreement. It provides that two or 
more parties to a multilateral treaty inter se may modify it 
and bind themselves if the treaty allows such a modification. 
If the treaty does not specifically allow such a modification 
but does not prohibit it, Article 41 states that a modification 
of this nature is still permitted provided that the 
modification does not affect the enjoyment of the rights or the 
performance of obligations of the other parties to the treaty 
and does not relate to a provision derogation from which is 
incompatible with the effective execution of the object and 
purpose of the treaty as a whole. Unless the inter se agreement 
is one provided for by the treaty, the parties to it must 
notify the other parties of their intention to conclude the 
agreement and of the modifications for which it provides.
    The Restatement (Third) states a rule for the conduct of 
the United States with respect to amendment or modification of 
an international agreement that is generally in conformity with 
the just described international law on the subject. Section 
334, thus, provides that:
          (1) An international agreement may be amended by 
        agreement between the parties.
          (2) Unless it provides otherwise, a multilateral 
        agreement may be amended, with effect as between those 
        states that become parties to the amending agreement, 
        if all the contracting states were given an opportunity 
        to take part in the negotiations and to become parties 
        to the agreement as amended.
          (3) Two or more of the parties to a multilateral 
        agreement may agree to modify the agreement as between 
        themselves alone if such modification is provided for 
        by the agreement or it is not prohibited by it and 
        would not be incompatible with the rights of the other 
        parties to the agreement or with its object and 
        purpose.\34\
---------------------------------------------------------------------------
    \34\ Rest. 3d, supra, Sec. 334.

    As previously indicated, amendments or modifications to a 
treaty or international agreement generally have entailed the 
same procedure as the original agreement unless otherwise 
specified in the original agreement. Thus, the Hackworth 
edition of the Digest of International Law states that ``the 
modification of [an] existing treaty * * * involves the 
conjoint action of the treatymaking powers in a variety of 
circumstances,'' \35\ and the Whiteman edition reiterates that 
``it is a general rule that a treaty cannot be modified except 
by an instrument brought into force through the treaty 
processes.'' \36\ Consequently, the advice and consent of the 
Senate has generally been sought for amendments to treaties. 
The Whiteman edition of the Digest of International Law 
describes one such instance, as follows:
---------------------------------------------------------------------------
    \35\ V Hackworth, supra, p. 333.
    \36\ 14 Whiteman, supra, p. 441.
---------------------------------------------------------------------------
          * * * At the 29th session of the General Conference 
        of the International Labor Organization (ILO), 
        Montreal, October 9, 1946, there were adopted an 
        instrument for the amendment of the ILO Constitution * 
        * * and a Final Articles Revision Convention, 1946 * * 
        * In transmitting to the Congress a draft of a joint 
        resolution providing for acceptance of the United 
        States of the revised Constitution, the following 
        statement was made in a document accompanying the 
        letter from the Secretary of State:
                  ``The Final Articles Revision Convention, 
                which is printed in the same document, is to be 
                discussed in a separate memorandum. It is 
                intended that this convention will be submitted 
                to the Senate for its advice and consent 
                inasmuch as its intended effect is to change 
                the language of conventions which have been 
                ratified with the advice and consent of the 
                Senate or are pending before that body.'' \37\
---------------------------------------------------------------------------
    \37\ Ibid., pp. 59-60.

    Similarly, the Senate on October 1, 1992, without fanfare 
or protracted debate, gave its advice and consent to 
Presidential ratification of the Strategic Arms Reduction 
Treaty (START) along with an amending protocol. START, a 
product of 10 years of frequently difficult negotiations 
between the United States and the former Soviet Union, reduced 
rather than simply placed a cap on weapons systems possessed by 
the rival Cold War superpowers. Signed July 31, 1991, by 
President Bush and then-Soviet President Mikhail S. Gorbachev, 
the treaty became caught up in the events that led to the 
dissolution of the Soviet Union and the emergence of more than 
a dozen new states on its territory. Accordingly, the Bush 
Administration negotiated an amendatory protocol providing that 
four of the new succeeding states which had strategic offensive 
weapons within their borders (Russia, Belarus, Ukraine and 
Kazakhstan) would assume the former Soviet Union's obligations 
under the treaty as originally drafted. The administration 
submitted the protocol to the Senate, and the Senate then 
approved both START and the amendatory protocol at the same 
time.\38\
---------------------------------------------------------------------------
    \38\ The protocol was submitted to the Senate on June 23, 1992. See 
Senate Treaty Doc. 102-32, 102d Cong., 2d Sess. (1992).
---------------------------------------------------------------------------
    More recently, the Senate has forcefully insisted on its 
right to advise and consent on amendments to treaties. One of 
the treaty issues that emerged in the aftermath of the 
dissolution of the Soviet Union concerned the definition of 
what states were to be deemed its successor states for purposes 
of allocating its rights and obligations under the Anti-
Ballistic Missile (ABM) Treaty. After lengthy negotiations a 
Memorandum of Understanding on Succession (MOUS) was concluded 
in September 1997, which designated Belarus, Kazakhstan, 
Russia, and Ukraine as the successor parties to the treaty and 
allocated to them specified rights and obligations. The Clinton 
Administration had contended that the determination of the 
successor states did not constitute an amendment to the ABM 
Treaty but was an exercise of the President's constitutional 
prerogatives to determine state succession issues for purposes 
of treaty continuity.\39\ But a number of Senators disagreed 
with that perspective; and prior to the signing of the MOUS the 
Senate included the following condition in its resolution of 
ratification on an unrelated agreement, the Conventional Forces 
in Europe Flank Document: \40\
---------------------------------------------------------------------------
    \39\ See Letter from William C. Danvers, Special Assistant to the 
President, to Al Gore, President of the United States Senate 
transmitting the ``Report on the Livingston ABM Amendment'' (November 
29, 1996), reported as filed in the Senate at 143 Congressional Record, 
January 7, 1997, p. S87 (daily ed.) (No. EC 175). The Livingston 
amendment, Sec. 406 of the Department of State and Related Agencies 
Appropriations Act for Fiscal 1997, required the President to report to 
Congress on whether the MOUS and the Agreed Statement on Demarcation 
(ASD) constituted ``substantive changes'' to the ABM Treaty and whether 
they ``require the advice and consent of the Senate.''
    \40\ TIAS ____ (May 15, 1997).
---------------------------------------------------------------------------
          (9) SENATE PREROGATIVES ON MULTILATERALIZATION OF THE 
        ABM TREATY.--
                  (A) * * *
                  (B) CERTIFICATION REQUIRED.--Prior to the 
                deposit of the United States instrument of 
                ratification, the President shall certify to 
                the Senate that he will submit for Senate 
                advice and consent to ratification any 
                international agreement--
                          (i) that would add one or more 
                        countries as States Parties to the ABM 
                        Treaty, or otherwise convert the ABM 
                        Treaty from a bilateral treaty to a 
                        multilateral treaty; or
                          (ii) that would change the geographic 
                        scope or coverage of the ABM Treaty, or 
                        otherwise modify the meaning of the 
                        term ``national territory'' as used in 
                        Article VI and Article IX of the ABM 
                        Treaty.
                  (C) * * *.\41\
---------------------------------------------------------------------------
    \41\ For the text of the Senate's resolution of ratification on the 
CFE Flank Document, see 143 Congressional Record, May 14, 1997, p. 
S4477 (daily ed.).
---------------------------------------------------------------------------
    President Clinton protested that this condition invaded ``a 
matter reserved to the President under the Constitution'' and 
was substantively unrelated to the CFE Flank Document but, 
nonetheless, certified that he would submit ``any agreement 
concluded on ABM Treaty succession'' to the Senate for its 
advice and consent.\42\
---------------------------------------------------------------------------
    \42\ 143 Congressional Record, May 15, 1997, pp. S4587-S4588 (daily 
ed.) (Report on the CFE Flank Document--Message from the President).
---------------------------------------------------------------------------
    The Senate's advice and consent on the CFE Flank Document 
was itself the result of Senate insistence on its prerogatives. 
The 1990 Treaty on Conventional Forces in Europe (CFE) was an 
arms control agreement between the 22 nations of the North 
Atlantic Treaty Organization (NATO) and the Warsaw Pact placing 
alliancewide, regional, and national ceilings on specific major 
categories of conventional military equipment. The purpose of 
the pact was to stabilize the military situation in Europe and 
to reduce tensions. But the dissolution of the Warsaw Pact and 
the breakup of the Soviet Union necessitated measures to adapt 
the provisions of the CFE to the changed circumstances. One of 
the resulting agreements was the CFE Flank Document, which 
allowed Russia to maintain a higher level of certain categories 
of military equipment in the Caucasus and Baltic regions of its 
territory than would otherwise have been allowed. The Clinton 
Administration initially sought to gain approval of the 
agreement by means of a statute to be adopted by the House and 
the Senate. But the Senate rebuffed that effort; and in 
negotiations on whether the Senate would take up the Chemical 
Weapons Convention (CWC), the Senate leadership obtained the 
administration's commitment to submit the CFE Flank Document to 
the Senate for its advice and consent. The administration did 
so; \43\ and, as noted above, the Senate gave its approval on 
May 14, 1997.
---------------------------------------------------------------------------
    \43\ Treaty Doc. 105-5, 105th Cong., 1st Sess. (April 7, 1997).
---------------------------------------------------------------------------
    The Clinton Administration had also sought to have another 
agreement relating to the ABM Treaty approved by means of a 
statute rather than by submission to the Senate for its advice 
and consent. U.S. interest in developing a theater missile 
defense system led the administration to pursue negotiations 
with several of the successor states to the Soviet Union on a 
``clarification'' of the ABM Treaty to establish a demarcation 
line between ballistic missile defense systems restricted by 
the treaty and theater missile defense systems that were 
allowable. Ultimately the negotiations succeeded in concluding 
an Agreed Statement Regarding Demarcation (ASD) in June 1996, 
which was subsequently elaborated and signed by the United 
States, Russia, Belarus, Kazakhstan, and the Ukraine in 
September 1997.\44\ The administration agreed that the ASD 
constituted a ``substantive modification of the obligations we 
would otherwise have under the Treaty,'' but it contended that 
the change could be approved by Congress by statute and that it 
did not need to be submitted for the Senate's advice and 
consent.\45\ Nonetheless, bargaining over the Senate's 
willingness to consider the CWC caused the administration to 
agree to submit the ASD to the Senate for its advice and 
consent.\46\
---------------------------------------------------------------------------
    \44\ The texts of these agreements can be found on the State 
Department's Web site at www.state.gov/www/global/arms/bureau__ac/
missile.
    \45\ See letter from William C. Danvers, Special Assistant to the 
President, to Al Gore, President of the United States Senate, supra, n. 
39, and Office of Legal Counsel, Department of Justice, ``Validity of 
Congressional-Executive Agreements That Substantially Modify the United 
States' Obligations Under an Existing Treaty'' (November 25, 1996).
    \46\ As of November 2000, however, neither the ASD nor the MOUS had 
yet been sent to the Senate.
---------------------------------------------------------------------------
    Senate advice and consent may not be required, however, 
when an agreement is effectively amended or modified by a later 
agreement or when an act of Congress affects a treaty in some 
vital regard. Thus, when the United States and another country 
were parties to a bilateral treaty but then became parties to a 
multilateral convention covering the same subject matter (in 
part), the convention was judicially declared to modify 
conflicting provisions in the bilateral agreement and to 
control the proceeding.\47\ Similarly, when an earlier 
convention was merely suspended by the terms of a later 
agreement on the same subject, the expiration of the latter 
automatically caused the former to resume operation and effect 
``without further action of Congress.'' \48\ Moreover, in an 
instance when an act of Congress authorized the President to 
suspend the exercise of judicial functions by American 
diplomatic and consular officials in Egypt, the President was 
advised by the State Department that he could give ``practical 
effect'' to a convention providing for termination of 
extraterritorial rights in Egypt granted by previous treaties 
pending formal ratification of the convention by the United 
States.\49\ Likewise, when American consular officers were 
authorized to exercise judicial functions by virtue both of an 
act of Congress and a treaty, Secretary of State Lansing 
indicated that ``the appropriate method under the American 
system of Government of divesting the Consuls of this authority 
is either by a repeal of the act or by conclusion of [another] 
treaty * * *.'' \50\
---------------------------------------------------------------------------
    \47\ Fotochrome Inc. v. Copal Company Ltd., 517 F. 2d 512 (2d Cir. 
1975), note 4.
    \48\ V Hackworth, supra, p. 338.
    \49\ Ibid., at 341-342.
    \50\ Ibid., at 334.
---------------------------------------------------------------------------
    Senate advice and consent may also not be required if 
treaties are amended by means of tacit agreement. While 
acknowledging that ``[t]he President is * * * without 
authority, except by and with the advice and consent of the 
Senate, to modify a treaty provision,'' Hackworth states that 
there have been ``instances in which he [the President], acting 
through the Secretary of State, has tacitly acquiesced in 
actions by foreign Governments which had the effect of 
modifying stipulations in our treaties.'' \51\ Examples of 
change in the strict terms of an international agreement by 
tacit acquiescence documented by Hackworth involved 
multilateral arrangements accepted by all the parties and 
temporary departures during periods of abnormal conditions such 
as war or pending action on a new treaty.\52\
---------------------------------------------------------------------------
    \51\ Ibid., at 340.
    \52\ Ibid., at 339-341.
---------------------------------------------------------------------------
    Moreover, as previously noted, notwithstanding the general 
rule regarding the need for Senate approval, the Department of 
State in the post-World War II period has not been sending to 
the Senate reservations on the part of other nations to 
multilateral treaties ratified by the United States.\53\ The 
Restatement (Third) takes note of the practice and concludes 
with this observation:
---------------------------------------------------------------------------
    \53\ See note 23 and accompanying text.
---------------------------------------------------------------------------
          Constitutionally, that practice must depend on an 
        assumption that the Senate, aware of Executive practice 
        and acquiescing in it, in giving consent to the treaty 
        also tacitly gives its consent to later acceptance by 
        the Executive of reservations by other states.\54\
---------------------------------------------------------------------------
    \54\ Rest. 3d, supra, Sec. 314, Comment c.

    The tacit amendment process may also occur pursuant to the 
explicit provisions of some treaties. Due, perhaps, to their 
complexity and technical specificity, a number of arms control 
and environmental agreements establish processes for their own 
modification which do not require further Senate involvement. 
The modifications allowed typically are described as not rising 
to the level of an amendment of the treaties; but, nonetheless, 
the processes permit the treaty regime to evolve in some 
respects without reference to the Senate. The INF Treaty, for 
instance, created a Special Verification Commission with the 
authority to modify the verification procedures used under the 
treaty and, in the case of the Inspections Protocol, to ``agree 
upon such measures as may be necessary to improve the viability 
and effectiveness of this Protocol.'' \55\ The CFE Treaty, in 
turn, created a Joint Consultative Group with the authority to 
agree to improvements of a technical or administrative 
nature.\56\ The START agreement includes a number of provisions 
that allow the Joint Compliance and Inspection Commission to 
``agree upon such additional measures as may be necessary to 
improve the viability and effectiveness of the Treaty.'' \57\ 
The United States-Japan Convention for the Protection of 
Migratory Birds allows the parties to modify the list of birds 
protected by diplomatic note.\58\ The Montreal Protocol on 
Substances that Deplete the Ozone Layer allows the parties to 
restrict the production and consumption of substances specified 
in the annexes as depleting atmospheric ozone as well as the 
timetable by which such adjustments must be made.\59\ Some 
agreements explicitly permit modifications to become effective 
for all parties even absent unanimous agreement. The Montreal 
Protocol on Substances that Deplete the Ozone Layer, for 
instance, encourages consensus but as a last resort allows 
decisions regarding the production and consumption of ozone-
depleting substances which are binding on all parties to be 
made by a two-thirds majority vote.\60\ The International 
Convention on Safety of Life at Sea permits amendments to enter 
into force automatically after a specified time period has 
elapsed, absent objection by a quorum of parties.\61\ The U.N. 
Charter, in Article 108, provides that an amendment comes into 
force for all members if it is approved by two-thirds of the 
members of the General Assembly and ratified by two-thirds of 
the member states including all permanent members of the 
Security Council.
---------------------------------------------------------------------------
    \55\ INF Treaty, TIAS ____, 27 ILM 84 (1988), Articles XI and XIII.
    \56\ CFE Treaty, TIAS ____, 30 ILM 1 (1991), Article XVI.
    \57\ START, TIAS ____ (1994). For a description and critical 
discussion of the tacit amendment processes in these and a number of 
other arms control agreements, see Koplow, David A. When Is an 
Amendment Not an Amendment: Modification of Arms Control Agreements 
Without the Senate. University of Chicago Law Review, v. 59, 1992, p. 
981.
    \58\ 25 UST 3329 (1972).
    \59\ TIAS ____ (1987), Article 2(9).
    \60\ Ibid.
    \61\ 32 UST 47 (1980), Article VIII.
---------------------------------------------------------------------------
    The Senate, in giving its advice and consent to the 
treaties which contain these various processes for 
modification, presumably has also given its consent in advance 
to the modifications adopted pursuant to those processes. 
Nonetheless, the tacit amendment process has given the Senate 
some concern, and it has at times requested or required the 
executive branch to advise the Senate of such amendments prior 
to their entry into force. In its report recommending the 
approval of the Convention on the Prevention of Maritime 
Pollution by Dumping of Wastes and other Matter as modified by 
a 1978 protocol,\62\ the Senate Foreign Relations Committee 
tried to balance the need to prevent undue delay with its 
oversight responsibility. It said:
---------------------------------------------------------------------------
    \62\ 26 UST 2403; TIAS 8165.
---------------------------------------------------------------------------
          It should be noted that the 1973 parent convention 
        contains a provision (Article 16) which provides for a 
        tacit amendment process. The Committee recognizes the 
        need for an expedited process for highly technical 
        treaties of this nature. However, the Committee will 
        approve this procedure only on a case-by-case basis and 
        only with respect to technical provisions. The 
        Committee expects the Administration to inform it of 
        any proposed amendments subject to this procedure prior 
        to the time for tacit acceptance. This will enable the 
        Committee to voice an objection to tacit acceptance in 
        appropriate cases, before the issue becomes moot.\63\
---------------------------------------------------------------------------
    \63\ S. Exec. Rept. 96-36, 96th Cong., 2d Sess. (1980), p. 2 
(emphasis added).

    While the reasons behind the committee's attempt to bridge 
efficiency and presumed constitutional requirements in this 
manner are readily understood, the procedure raises various 
fundamental questions. Notably, whether the committee, on its 
own motion, may tacitly consent for two-thirds of the Senate or 
whether the Congress by law or the Senate by rule could 
authorize the committee to act in this manner are unresolved 
issues.\64\
---------------------------------------------------------------------------
    \64\ See INS v. Chadha, 462 U.S. 919 (1983) (one house veto held 
unconstitutional); Consumer Union v. FTC, 691 F. 2d 575 (D.C. Cir. 
1982), affd. sub nom, Process Gas Consumers Group v. Consumer Energy 
Council, 463 U.S. 1216 (1983) (two house veto held unconstitutional); 
American Federation of Government Employees v. Pierce, 697 F. 2d 303 
(D.C. Cir. 1982) (committee veto held unconstitutional).
---------------------------------------------------------------------------

                          executive agreements

    As ``[t]he Constitution of the United States nowhere makes 
explicit provision for the President to conclude international 
agreements other than treaties,'' \65\ it follows that the 
Constitution offers no guidance regarding the amendment of 
executive agreements.\66\ Furthermore, authoritative texts and 
secondary writings to all appearances fail to shed any 
significant light on the actual practice of amending executive 
agreements.
---------------------------------------------------------------------------
    \65\ 14 Whiteman, supra, p. 194. See Chapter IV.
    \66\ The power of the President to make executive agreements has 
been recognized by the Supreme Court, United States v. Curtiss-Wright 
Export Corp., 299 U.S. 304 (1936); United States v. Pink, 315 U.S. 203 
(1942). ``A treaty signifies `a compact made between two or more 
independent nations with a view to the public welfare.' * * * But an 
international compact is not always a treaty which requires the 
participation of the Senate. There are many such compacts, of which a 
protocol, a modus vivendi, a postal convention, and agreements 
[assigning foreign assets] * * * are illustrations.'' United States v. 
Belmont, 301 U.S. at 330-331.
---------------------------------------------------------------------------
    As previously noted, the general rule is that the amendment 
or modification of an international agreement to which the 
United States is a party is subject to the same rules as apply 
to the making of an agreement. Accordingly, since agreements of 
this nature concluded by the President are not submitted to the 
Senate or Congress for approval, amendments to such agreements 
ordinarily do not require Senate or congressional approval. It 
seems clear that in the case of an executive agreement based on 
the sole authority of the President, modifications to such an 
agreement are a matter of Presidential discretion.\67\ As a 
general matter, the same conclusion applies to modifications of 
executive agreements pursuant to either a treaty or an act of 
Congress.\68\ It would appear that so long as the amendment of 
an executive agreement is consonant with the underlying treaty 
or law which authorized the agreement in the first instance, 
that is, the agreement carries out their purposes, the 
President would be within his rights to make such an amendment.
---------------------------------------------------------------------------
    \67\ See note 20. ``* * * the President, on his own authority, may 
make an international agreement dealing with any matter that falls 
within his independent powers under the Constitution.'' Rest. 3d, 
supra, Sec. 303(4).
    \68\ ``* * * (2) the President, with the authorization or approval 
of Congress, may make an international agreement dealing with any 
matter that falls within the powers of Congress and of the President 
under the Constitution; (3) the President may make an international 
agreement as authorized by treaty of the United States.'' Ibid.
---------------------------------------------------------------------------
    However, Congress may impose limitations on agreements it 
authorizes to be made.\69\ Notably in the fields of 
international trade and nuclear energy Congress has authorized 
the President to conclude international agreements but has 
required him to submit them for congressional scrutiny and 
possible disapproval.\70\ Moreover, the Senate may condition 
approval of a treaty which authorizes the conclusion of an 
agreement upon submission of the agreement for approval by the 
Senate or Congress.\71\ Similarly, an act of Congress or treaty 
could require Senate or congressional approval of amendments or 
modifications to international agreements that they authorize 
the President to conclude.\72\
---------------------------------------------------------------------------
    \69\ Ibid., at 223.
    \70\ For example, Trade Act of 1974, 88 Stat. 1982 (1975); 19 
U.S.C. 2112. Nuclear Non-Proliferation Act of 1978, 92 Stat. 120 
(1978); 42 U.S.C. 2153(d), 2155(b), 2157(b), and 2160(f).
    \71\ ``The treaty of inter-American arbitration signed at 
Washington, on January 5, 1929, was submitted to the Senate by 
President Coolidge on January 26, 1929. The Senate, on January 19, 
1932, advised and consented to its ratification with reservations, 
which were regarded by the Executive as highly objectionable. In 1934, 
President Roosevelt resubmitted the treaty to the Senate, and, in 1935, 
it gave its advice and consent to ratification, without certain of the 
reservations previously insisted upon, although it did so with the 
understanding that the special agreements to arbitrate should, in each 
instance, be subject to approval by the Senate. The President ratified 
the treaty with this understanding, and the ratification was deposited 
on April 16, 1935.'' V Hackworth, supra, p. 93.
    ``The Senate often has given its consent subject to conditions * * 
* The Senate may * * * give its consent on conditions that do not 
require change in the treaty but relate to domestic application, e.g., 
* * * that agreements * * * made in implementation of the treaty shall 
require the Senate's advice and consent.'' Rest. 3d, supra, Sec. 303, 
Comment d.
    \72\ For example, Section 33 of the Arms Control and Disarmament 
Act, 75 Stat. 634 (1961); 22 U.S.C. 2573, provides that no ``action'' 
shall be taken that obligates the United States to disarm or reduce or 
limit the Armed Forces of the United States unless pursuant to treaty 
or unless authorized by legislation.
---------------------------------------------------------------------------

                              C. Extension

                                treaties

    The Vienna Convention on the Law of Treaties deals 
implicitly rather than explicitly with the subject of treaty 
extension. Extension of an international agreement to all 
intents and purposes is the execution of a new agreement (or 
re-execution) and, therefore, is subject to the convention's 
overall requirements for treaties, including conclusion, 
amendment and modification, suspension, and termination.
    As an agreement to extend a treaty for many, if not most, 
purposes is considered a treaty modification, general U.S. 
practice is to submit an extension to the Senate for its advice 
and consent. Accordingly, when France gave 6-months' notice of 
termination as provided in Article VII of the Commercial 
Convention of 1822 but requested tacit extension for 3-month 
periods after the termination date until it was replaced by a 
new treaty, the Department of State replied:
          * * * [T]he Government of the United States is not in 
        a position to agree to the proposals * * *. The 
        suggestion of the French government amounts * * * in my 
        opinion to a proposal to modify the terms of the 
        treaty, a proposal which is not susceptible of 
        execution on the part of the Government in the manner 
        suggested.\73\
---------------------------------------------------------------------------
    \73\ V Hackworth, supra, p. 334.

    Instead, the Department proposed a new treaty modifying 
Article VII to allow for termination upon 3-months' notice as 
the best means of complying with the French request. The latter 
accepted this suggestion and after the new agreement went into 
effect, the United States and France, in an exchange of notes, 
agreed that the new treaty amounted to a withdrawal of the 
French notice of termination.\74\ Similar replies were given to 
requests for postponement of termination of treaties made by 
Norway, Spain, and Greece.\75\
---------------------------------------------------------------------------
    \74\ Ibid., p. 335.
    \75\ Ibid.
---------------------------------------------------------------------------
    Similarly, when Italy proposed that commissioners acting 
under a treaty serve indefinite terms rather than the 5-year 
term established in the treaty, the Department of State replied 
that this change could not be made by an exchange of notes but 
would require a new treaty.\76\ In like manner, when the United 
States and Canada agreed to depart from a 1909 treaty 
concerning the diversion of boundary waters in the Niagara 
River to permit an additional diversion for power purposes, the 
exchange of notes stated that the agreement would be effective 
``when approved by the Senate.'' \77\ ``The Senate of the 
United States advised ratification on June 2, 1941, and the 
President `approved' the arrangement on June 13.'' \78\
---------------------------------------------------------------------------
    \76\ Ibid.
    \77\ Ibid.
    \78\ Ibid., p. 336.
---------------------------------------------------------------------------
    The extension of commodity agreements--agreements 
establishing the framework for international cooperation in 
wheat, coffee, tin, and sugar--are routinely submitted to the 
Senate. The International Wheat Agreement of 1971, which was 
replaced in 1988 by a 1986 successor, was extended on more than 
half a dozen occasions.\79\ In 1981 the Senate gave its advice 
and consent to an 8-month extension of the rights, duties, and 
obligations of the parties under the Treaty of Friendship and 
Cooperation of January 24, 1976, between the United States and 
Spain. The temporary extension, among other things, preserved 
in force U.S. access to and use of military facilities in Spain 
pending negotiation of a successor agreement to the 1976 treaty 
and Spain's accession to the North Atlantic Treaty.\80\
---------------------------------------------------------------------------
    \79\ Treaty Doc. 97-9, p. v (1981); S. Exec. Rept. 100-10, 100th 
Cong., 1st Sess. (1987), p. 12. The 1986 agreement provided for 2-year 
extensions on the basis of the mutual consent of the participating 
countries without resort to formal ratification procedures. Ibid., p. 
20.
    \80\ Treaty Doc. 97-20, 97th Cong., 1st Sess. (1981), p. 1.
---------------------------------------------------------------------------
    However, the extension of times for the organization of 
commissions called for by various treaties was in one instance 
accomplished by an exchange of notes and in another by 
agreement of the members of the commission.\81\
---------------------------------------------------------------------------
    \81\ V Hackworth, supra, p. 337.
---------------------------------------------------------------------------
    The role of the Senate with respect to the extension or 
enlargement of a treaty in terms of geographic scope and 
parties eligible to adhere seems to depend on the nature of the 
treaty. In the case of treaties providing for regional or 
collective self defense arrangements, the Senate has been 
insistent that its approval is required for the addition of new 
members. Whiteman provides the following relevant 
illustrations:
          The Senate Committee on Foreign Relations, in its 
        report of June 6, 1949, recommending advice and consent 
        to ratification of the [North Atlantic] Treaty 
        commented:
                  Inasmuch as the admission of new members 
                might radically alter our obligations under the 
                pact, the committee examined article 10 very 
                carefully. The question arose whether an United 
                States decision respecting new members would be 
                based solely on Presidential action or would 
                require Senate approval. Consequently, the 
                committee was fully satisfied by the commitment 
                of the President, delivered by the Secretary of 
                State, that he would consider the admission of 
                a new member to the pact as the conclusion of a 
                new treaty with that member and would seek the 
                advice and consent of the Senate to each such 
                admission. The committee considers this is an 
                obligation binding upon the Presidential 
                office.\82\
---------------------------------------------------------------------------
    \82\ 14 Whiteman, supra, p. 100, quoting S. Exec. Rept. 8, 81st 
Cong., 1st Sess. (1949), p. 18.
---------------------------------------------------------------------------
          The report of the Foreign Relations Committee 
        recommending ratification of the [Southeast Asia 
        Collective Defense] Treaty stated:
                  Provision is made in three articles of the 
                treaty for modification of its terms by 
                unanimous agreement. Thus, article IV, 
                paragraph 1, as well as article VII, 
                contemplates that the treaty area may be 
                extended by the parties to any state or 
                territory `which the parties by unanimous 
                agreement may hereafter designate.' Article VII 
                refers to the accession of additional states 
                `by unanimous agreement of the parties.' To 
                avoid the possibility of any misunderstanding 
                on the significance of this clause, the 
                President informed the Senate * * * that the 
                provisions with respect to designation of new 
                territories and membership are to be construed 
                as requiring the Senate's advice and consent. 
                In other words, it is not enough that the 
                executive branch should acquiesce in the 
                addition of new members or in the modification 
                of the treaty area, but these matters must also 
                be brought before the Senate.\83\
---------------------------------------------------------------------------
    \83\ Ibid., p. 101, quoting S. Exec. Rept. 11, 84th Cong., 1st 
Sess. (1957), pp. 11-12.

    In contrast, the Senate has generally not sought or 
reserved to itself any role with respect to state participation 
in most other multilateral conventions, including those 
establishing international organizations. The admission of new 
states to the United Nations, for instance, is effected by 
decision of the General Assembly upon the recommendation of the 
Security Council.\84\ No review or approval by the Senate is 
required.\85\
---------------------------------------------------------------------------
    \84\ U.N. Charter, Article 4; 59 Stat. 1031; 3 Bevans 1153.
    \85\ See S. Exec. Rept. F, 79th Cong., 1st Sess. (1945).
---------------------------------------------------------------------------

                          executive agreements

    In the case of an international agreement in the form of an 
executive agreement, extension does not involve the Senate or 
Congress if the agreement is based on the President's exclusive 
constitutional authority. But if the executive agreement is 
pursuant to treaty or congressional authorization, the Senate's 
consent to the treaty or Congress' authorization may specify 
conditions on its extension and reserve a role for the Senate 
or Congress. In the Magnuson Fishery Conservation and 
Management Act of 1976, for instance, Congress directed the 
Secretary of State to negotiate ``governing international 
fishery agreements'' (other than treaties), specified the 
conditions that they had to meet, and directed that no such 
agreements be ``renewed, extended, or amended'' unless they met 
the specified conditions.\86\ Subsequently, Congress by statute 
approved the extension of several such agreements.\87\
---------------------------------------------------------------------------
    \86\ 16 U.S.C. 1822(c); Public Law 94-265, Title II, Sec. 202 
(April 13, 1976); 90 Stat. 331, 340.
    \87\ See, for example, Public Law 98-364, Title I, Sec. 106 (July 
17, 1984) (approving the extension of the Governing International 
Fishery Agreement with the European Economic Community) and Public Law 
100-66, Sec. 1 (July 10, 1987) (approving the extension of the 
Governing International Fishery Agreement with South Korea).
---------------------------------------------------------------------------

                           D. Suspension \88\
---------------------------------------------------------------------------

    \88\ ``Suspension is distinguished from termination * * * 
principally in that suspension can be revoked or terminated informally 
and no new agreement is necessary to restore the agreement to full 
effect. Unilateral suspension can be revoked and the agreement 
reactivated unilaterally by the suspending party; suspension by 
agreement of the parties can be ended and the agreement restored by 
agreement of the parties informally.'' Rest. 3d, supra, Sec. 333, 
Comment a. ``Suspension of an agreement is relatively rare.'' Ibid., 
Reporters' Note 3.
---------------------------------------------------------------------------

                                treaties

    The provisions in the Vienna Convention on the Law of 
Treaties regarding the suspension of the operation of a treaty 
parallel the provisions of the convention relating to the 
termination of a treaty. Briefly, the operation of a treaty as 
to all of the parties or as to a particular party may be 
suspended in conformity with its provisions or by consent of 
all of the parties.\89\
---------------------------------------------------------------------------
    \89\ Vienna Convention on the Law of Treaties, supra, Article 57.
---------------------------------------------------------------------------
    Two or more parties to a treaty may agree to suspend the 
operation of its provisions temporarily and as between 
themselves alone in accordance with relevant treaty provisions. 
In the absence of relevant provisions, parties in these 
circumstances may agree to suspend the operation of treaty 
provisions under two conditions. The first is that the 
suspension does not affect the enjoyment by other parties of 
their rights under the treaty or the performance of their 
obligations. The second is that the suspension cannot be 
incompatible with the object and purpose of the treaty. Unless 
suspension is allowed by the treaty, the suspending parties are 
required to give notice of their intention to suspend to the 
other parties.\90\
---------------------------------------------------------------------------
    \90\ Ibid., Article 58.
---------------------------------------------------------------------------
    Generally speaking, where parties, without expressly 
terminating an earlier treaty, enter into another and 
incompatible treaty on the same subject, the former is deemed 
terminated. However, a treaty in these circumstances is not 
considered to have been terminated if it appears from the later 
treaty or it is otherwise established that the parties intended 
only to suspend its operation.\91\
---------------------------------------------------------------------------
    \91\ Ibid., Article 59.
---------------------------------------------------------------------------
    A material breach of a bilateral treaty by one party 
entitles the other party to invoke the breach as a ground for 
terminating the treaty or suspending its operation, in whole or 
in part. In the case of a material breach of a multilateral 
treaty by one of the parties, the Vienna Convention 
distinguishes between the right of the other parties to react 
jointly to the breach and the right of an individual party 
specially affected by the breach to react alone. In the first 
case, the other parties by unanimous agreement may suspend the 
operation of the treaty or terminate it and they may do so 
either in their relations with the defaulting state or as 
between all the parties. In the second case any party specially 
affected by the breach may invoke it as a ground for suspending 
the operation of the treaty in whole or in part in the 
relations between itself and the defaulting state. Where a 
material breach is of such a character that it radically 
changes the position of every party with respect to the 
performance of its obligations under the treaty, any other 
party may invoke the breach to suspend the operation of the 
treaty in whole or in part with respect to itself.\92\
---------------------------------------------------------------------------
    \92\ Ibid., Article 60.
---------------------------------------------------------------------------
    The Restatement (Third) follows a portion of the Vienna 
Convention in Section 333 as follows:
          (1) The operation of an international agreement may 
        be suspended in conformity with its provisions or by 
        consent of all the parties.
          (2) Two or more parties to a multilateral 
        international agreement may agree to suspend its 
        operation as between themselves if
                  (a) the agreement provides for such 
                suspension; or
                  (b) the agreement does not prohibit such 
                suspension and the suspension would not be 
                incompatible with the rights of the parties to 
                the agreement or with its object and 
                purpose.\93\
---------------------------------------------------------------------------
    \93\ Rest. 3d, supra, Sec. 333.

    While acknowledging that the Constitution does not 
expressly authorize the President to suspend an international 
agreement on behalf of the United States, the Restatement 
(Third) concludes that he may do so because he is empowered to 
conduct the foreign relations of the United States. The 
Restatement's rules covering suspension are formulated 
accordingly. Thus Section 339 provides that:
          Under the law of the United States, the President has 
        the power
                  (a) to suspend * * * an agreement in 
                accordance with its terms;
                  (b) to make the determination that would 
                justify the United States in * * * suspending 
                an agreement because of its violation by 
                another party or because of supervening events, 
                and to proceed to * * * suspend the agreement 
                on behalf of the United States; or
                  (c) to elect in a particular case not to 
                suspend or terminate an agreement.\94\
---------------------------------------------------------------------------
    \94\ Ibid. Sec. 339.

    The Restatement rule is in line with a 1941 opinion by 
Acting Attorney General Biddle who concluded that a treaty 
could be suspended by the President without aid or intervention 
of the Senate or Congress. With respect to the International 
Load Line Convention signed at London on July 5, 1930, which 
limited the amount of cargo that ships could carry, he said:
          The convention may be declared inoperative or 
        suspended by the President. A declaration by the 
        President to that effect would validly render the 
        convention inoperative or suspended, as the case may 
        be. Attention to the observance of treaties is an 
        executive responsibility. Jefferson to Genet, 4 Moore, 
        Digest Int. L. 680-682 (1906). It is not proposed that 
        the United States denounce the convention under article 
        25 (47 Stat. 2256), nor that it be otherwise abrogated. 
        Consequently, action by the Senate or by the Congress 
        is not required. Cf. 1 Stat. 578, 5 Moore, Digest Int. 
        El 356. The facts which bring into operation the right 
        to declare the convention inoperative or suspended are 
        within the knowledge of and can be promptly and 
        adequately appraised by the Executive Department; and 
        it is proper that the President, as ``the sole organ of 
        the Nation in its external relations should speak for 
        the Nation in announcing action which international law 
        clearly permits.'' See United States v. Curtiss-Wright 
        Export Corporation (1936) 299 U.S. 304, 319-320. See 
        also Charlton v. Kelly (1913) 229 U.S. 447, 472-476. 
        There is no question here of making or even of the 
        abrogation of a treaty. It is merely a question of a 
        declaration of inoperativeness of a treaty which is no 
        longer binding because the conditions essential to its 
        continued effectiveness no longer pertain.
          Accordingly, it is my opinion that the convention 
        referred to may be declared by you to be either 
        inoperative or suspended; and that upon such 
        declaration it would become inoperative or suspended as 
        the case may be leaving the Secretary of Commerce free 
        to set load lines pursuant to the act of March 2, 1929, 
        c. 508 (45 Stat. 1492), as amended by the act of May 
        26, 1939, c. 151 (55 Stat. 783), without regard to the 
        convention.\95\
---------------------------------------------------------------------------
    \95\ V Hackworth, supra, p. 339, citing 40 Op. Atty. Gen., no. 24 
(1941). See 14 Whiteman, supra, pp. 483-485.

    Fundamental to the Attorney General's position was the 
assumption that the convention presupposed peacetime conditions 
which no longer prevailed. Accordingly, the President could 
recognize the changed circumstances (rebus sic stantibus) and 
suspend the convention during the pendency of the abnormal 
circumstances. Without taking sides as to whether the rule of 
changed circumstances applies only when the change is essential 
or fundamental, the opinion concluded that the more onerous 
circumstance was met in this case.
    As previously indicated, a material breach of a bilateral 
international agreement by one of the parties entitles the 
other to suspend it in whole or in part. Also, a material 
breach of a multilateral agreement by one of the parties 
entitles the other parties by unanimous agreement to suspend it 
either between themselves and the defaulting state or as 
between all the parties. Under his authority to conduct the 
foreign relations of the United States, the President makes the 
determination that justifies suspending an agreement because of 
a material breach by another party. Accordingly, as a practical 
matter the President has the power to suspend a treaty since 
the courts look to executive determinations for guidance 
respecting the continued viability of a treaty.\96\ Thus, in 
1986 the United States gave notice that it was suspending the 
obligations of the ANZUS Security Treaty as it applied to New 
Zealand because of that country's prohibition on visits by 
nuclear-armed and nuclear-powered warships and aircraft. At the 
same time it gave notice to Australia, the other party to the 
ANZUS Treaty, that the treaty remained in full effect between 
the United States and Australia.\97\
---------------------------------------------------------------------------
    \96\ Charlton v. Kelly, 229 US 447, 476 (1913). See also Terlinden 
v. Ames, 184 U.S. 270, 290 (1902), and Baker v. Carr, 369 U.S. 186, 
211-212 (1962).
    \97\ Nash, Cumulative Digest 1981-1988, supra, Book I, pp. 1279-
1281.
---------------------------------------------------------------------------
    Where an intervening act of Congress effectively grants the 
President discretion to suspend a treaty provision in some 
material regard, there is no need for Senate or congressional 
action when the discretion is exercised. Accordingly, when an 
act of Congress authorized the President to suspend the 
exercise of judicial functions of American consular and 
diplomatic officials, the State Department concluded that he 
could suspend the jurisdiction of the consular and ministerial 
courts in Egypt and permit their jurisdiction to be transferred 
to the mixed courts of that country notwithstanding that 
ratification of a pertinent convention by the United States was 
still pending.\98\
---------------------------------------------------------------------------
    \98\ V Hackworth, supra, p. 342.
---------------------------------------------------------------------------
    Also, it has been observed that by virtue of his power to 
recognize or not to recognize governments, the President can 
continue or suspend treaty relations with the country in 
question.\99\
---------------------------------------------------------------------------
    \99\ Henkin, supra, at 489, note 138.
---------------------------------------------------------------------------
    In light of the tendency of domestic courts to be guided by 
executive actions regarding the continued effectiveness of a 
treaty, actions effectively waiving noncompliance by the other 
party do not as a practical matter require Senate or 
congressional approval. Thus, in upholding the extradition to 
Italy of an American national notwithstanding Italy's refusal 
earlier to surrender Italian nationals--a refusal which the 
United States regarded as a breach of the extradition treaty--
the Supreme Court held in favor of the treaty and extradition. 
It said:
          * * * If the attitude of Italy was, as contended, a 
        violation of the obligation of the treaty, which, in 
        international law, would have justified the United 
        States in denouncing the treaty as no longer 
        obligatory, it did not automatically have that effect. 
        If the United States elected not to declare its 
        abrogation, or come to a rupture, the treaty would 
        remain in force. It was only voidable, not void; and if 
        the United States should prefer, it might waive any 
        breach which in its judgment had occurred and conform 
        to its own obligation as if there had been no such 
        breach * * *
          That the political branch of the Government 
        recognizes the treaty obligation as still existing is 
        evidenced by its action in this case.
          The executive department having thus elected to waive 
        any right to free itself from the obligation to deliver 
        up its own citizens, it is the plain duty of this court 
        to recognize the obligation to surrender the appellant 
        as one imposed by the treaty as the supreme law of the 
        land and as affording authority for the warrant of 
        extradition.\100\
---------------------------------------------------------------------------
    \100\ Charlton v. Kelly, 229 U.S. 447, 473, 474, 476 (1913).

    In 1957 the Department of State indicated that while the 
President  ``as  a  practical  matter''  can  waive  the  
breach  of  a  treaty, the  power ``would  be  exercised  only 
in  light  of  the  circumstances of  the  particular  case,  
including  anticipated  congressional  reactions * * *.'' \101\
---------------------------------------------------------------------------
    \101\ 14 Whiteman, supra, p. 477.
---------------------------------------------------------------------------
    Concerning the exercise of a Presidential waiver adversely 
affecting the rights of American citizens under a treaty, the 
following comment has been made:
          Although it is a general rule that a treaty to which 
        the United States is a party cannot be modified except 
        by the instrument brought into force through the treaty 
        processes, the effect of modification may be achieved 
        in some instances by a waiver of rights under a treaty 
        or a failure to invoke the treaty in circumstances 
        where it could be invoked. To an inquiry from Senator 
        Jenner, Secretary of State Dulles replied:
                  In light of the fact that your letter * * * 
                specifically raised the question whether the 
                Department of State under the present 
                administration claims ``authority to modify 
                treaties,'' * * * I am glad to assure you that 
                it is my view that the Executive may modify a 
                treaty, or a provision thereof, only by the 
                conclusion of another instrument of equal 
                formality, i.e., by another treaty entered into 
                by and with the advice and consent of the 
                Senate. This is also the view of my advisers, 
                who are fully aware of my position and fully 
                share my views.
                  To summarize, there are certain instances in 
                which rights to which United States citizens 
                are entitled under treaties or other United 
                States laws may, in the national interest, 
                legally be waived, lessened or extinguished by 
                acts, agreements or decisions of the Executive 
                Branch of the Government. You may be assured, 
                however, that no such decisions would be taken 
                in any situation without very careful 
                consideration at a high level of the rights 
                involved and the national interest.\102\
---------------------------------------------------------------------------
    \102\ Ibid., pp. 441-442.
---------------------------------------------------------------------------

                          executive agreements

    Unless qualified by an act of Congress or treaty 
authorizing the agreement (that is, by the Senate's 
conditioning its advice and consent), the President may 
unilaterally suspend an executive agreement.

                      E. Termination or Withdrawal

                                treaties

Terms of treaty; unanimous consent
    As indicated in connection with the discussion of 
suspension, the Vienna Convention on the Law of Treaties sets 
forth the fundamental rule that a treaty may be terminated or 
that a party may withdraw from a treaty in two ways: first, in 
conformity with the provisions of the treaty; and second, at 
any time by consent of all the parties.\103\ Most commentaries 
on this aspect of treaty law agree that the modern practice is 
to include in international agreements provisions dealing with 
their termination. These provisions take various forms, such as 
establishing the agreements' duration, specifying a date for 
their termination, identifying a condition or event which lays 
the basis for their termination, or providing for the right to 
denounce or withdraw from the treaty.
---------------------------------------------------------------------------
    \103\ Vienna Convention on the Law of Treaties, supra, Article 54.
---------------------------------------------------------------------------
    A fairly common formulation conditions the right to 
withdraw upon notice to the other parties of the intention to 
withdraw and the expiration of a fixed period of time. In the 
case of a bilateral treaty the exercise of the right means 
termination; in the case of a multilateral treaty, withdrawal 
may, but does not necessarily, terminate the treaty with 
respect to the other parties. Of course, as consent is the 
basis of all international agreements, the parties may in most, 
if not all, circumstances put an end to a treaty by unanimous 
consent.
    Under international law a treaty which does not make any 
provision for its termination or for denunciation or withdrawal 
is not subject to denunciation or withdrawal. This prohibition 
flows from the fundamental principle of international law that 
treaties are to be observed ( pacta sunt servanda), that is, 
that treaty obligations are binding and cannot be unilaterally 
waived.\104\ However, the Vienna Convention allows two 
exceptions to this rule. Denunciation or withdrawal 
notwithstanding treaty silence on the subject is permitted if 
``it is established that the parties intended to admit of the 
possibility of denunciation or withdrawal'' or, alternatively, 
if ``a right of denunciation or withdrawal may be implied by 
the nature of the treaty.'' In either of these circumstances, 
the Vienna Convention states that 12-months' notice must be 
given of an intention to denounce or withdraw from a 
treaty.\105\
---------------------------------------------------------------------------
    \104\ Ibid., Article 26.
    \105\ Ibid., Article 56.
---------------------------------------------------------------------------
    The Restatement (Third) elucidates the U.S. position on the 
termination and denunciation of international agreements in a 
manner that is generally in accord with Articles 54 and 56 of 
the Vienna Convention. Thus, Section 332 provides that:
          (1) The termination and denunciation of an 
        international agreement, or the withdrawal of a party 
        from an agreement, may take place only
                  (a) in conformity with the agreement or
                  (b) by consent of all the parties.
          (2) An agreement that does not provide for 
        termination or denunciation or for the withdrawal of a 
        party is not subject to such action unless the right to 
        take such action is implied by the nature of the 
        agreement or from other circumstances.\106\
---------------------------------------------------------------------------
    \106\ Rest. 3d, supra, Sec. 332.

    The termination of a treaty under international law is not 
confined to circumstances where termination is the unanimous 
desire of the parties or in conformity with treaty provisions 
for termination. A treaty may be effectively terminated when 
all of the parties to it conclude a later treaty on the same 
subject if it appears from the latter or it is otherwise 
established that the parties intended that the matter should be 
governed by the second treaty. A similar result obtains where 
the provisions of the later treaty are so incompatible with the 
earlier one that the two of them cannot effectively 
coexist.\107\
---------------------------------------------------------------------------
    \107\ Vienna Convention on the Law of Treaties, supra, Article 59. 
The Restatement (Third) indicates that the United States adheres to 
this view regarding the termination of an international agreement by 
conclusion of a later incompatible agreement. See Rest. 3d, supra, 
Sec. 332, Comment e.
---------------------------------------------------------------------------
Breach
    Under Article 60 of the Vienna Convention, a material 
breach of a bilateral treaty by one of the parties entitles the 
other to invoke the breach as a ground for terminating the 
treaty in whole or in part. In the case of a material breach of 
a multilateral treaty, the other parties by unanimous agreement 
may terminate it either in their relations with the defaulting 
state or all the other parties. A material breach for this 
purpose consists of an unjustified repudiation of the treaty or 
a violation of a provision essential to the accomplishment of 
any object or purpose of the treaty.\108\
---------------------------------------------------------------------------
    \108\ Ibid., Article 60.
---------------------------------------------------------------------------
    The Restatement's treatment of a material breach of an 
international agreement as a ground for the agreement's 
termination follows closely in line with the corresponding 
provisions of the Vienna Convention. Section 335 summarizes the 
U.S. position as follows:
          (1) A material breach of a bilateral agreement by one 
        of the parties entitles the other to invoke the breach 
        as a ground for terminating the agreement or suspending 
        its operation in whole or in part.
          (2) A material breach of a multilateral agreement by 
        one of the parties generally entitles
                  (a) the other parties by unanimous consent to 
                suspend the operation of the agreement in whole 
                or in part or to terminate it, either
                          (i) in the relations between 
                        themselves and the defaulting state, or
                          (ii) as among all the parties;
                  (b) a party specially affected by the breach 
                to invoke it as a ground for suspending the 
                operation of the agreement in whole or in part 
                in the relations between itself and the 
                defaulting state;
                  (c) any party other than the defaulting state 
                to invoke the breach as a ground for suspending 
                the operation of the agreement in whole or in 
                part with respect to itself, if the agreement 
                is of such a character that a material breach 
                of its provisions by one party radically 
                changes the position of every party with 
                respect to the further performance of its 
                obligations under the agreement.\109\
---------------------------------------------------------------------------
    \109\ Rest. 3d, supra, Sec. 335.
---------------------------------------------------------------------------
Impossibility of performance
    The termination of a treaty may result from a supervening 
impossibility of performance, a condition that arises from the 
permanent disappearance or destruction of an object 
indispensable for the execution of the treaty. The 
impossibility has to be permanent and may not be the result of 
a breach by the invoking party either of an obligation under 
the treaty or of any other international obligation owed to any 
other party to the treaty.\110\
---------------------------------------------------------------------------
    \110\ Vienna Convention on the Law of Treaties, supra, Article 61.
---------------------------------------------------------------------------
Rebus sic stantibus
    A treaty may become inapplicable and, therefore, subject to 
being terminated because of a fundamental change of 
circumstances that has occurred since the conclusion of the 
treaty. This longstanding principle of international law is 
commonly called the doctrine of rebus sic stantibus. In order 
for the doctrine to apply, the change in circumstances from 
those that prevailed at the time the treaty was concluded must 
be both fundamental and not foreseen by the parties. In 
addition, the existence of the original circumstances must have 
constituted an essential basis of the consent of the parties to 
be bound by the treaty, and the effect of the change must be 
radically to transform the extent of the obligations still to 
be performed under the treaty. According to the Vienna 
Convention, the doctrine may not be invoked to terminate a 
treaty which establishes a boundary. Similarly, it is 
unavailable if the fundamental change is the result of a breach 
by the party invoking it, a breach either of an obligation owed 
under the treaty or of any other international obligation owed 
to any other party to the treaty.\111\
---------------------------------------------------------------------------
    \111\ Ibid., Article 62.
---------------------------------------------------------------------------
    The doctrine of changed circumstances or rebus sic 
stantibus is described by the Restatement (Third) as follows:
          A fundamental change of circumstances that has 
        occurred with regard to those existing at the time of 
        the conclusion of an international agreement, and which 
        was not foreseen by the parties, may generally be 
        invoked as a ground for terminating or withdrawing from 
        the agreement but only if
                  (a) the existence of those circumstances 
                constituted an essential basis of the consent 
                of the parties to be bound by the agreement and
                  (b) the effect of the change is radically to 
                transform the extent of obligations still to be 
                performed under the agreement.\112\
---------------------------------------------------------------------------
    \112\ Rest. 3d, supra, Sec. 336.

    The Restatement (Third) emphasizes that the invocation of 
this doctrine is ``exceptional,'' \113\ and Hackworth and 
Whiteman cite but one instance of its use by the United States 
(and then to justify suspension rather than termination of a 
treaty). In 1941 President Roosevelt suspended the 
International Load Line Convention of July 5, 1930 (47 Stat. 
2228). A memo from Acting Attorney General Biddle reasoned that 
the convention, which restricted the depth to which ships could 
be loaded and thus the amount of cargo they could carry, had 
been predicated on the existence of peace and the normal flow 
of commerce among nations. He contended that because of the 
wars in Europe and Asia, those conditions no longer existed; 
and as a consequence, he said, ``there is no doubt in my mind 
that the convention has ceased to be binding upon the United 
States.'' He concluded that ``[s]uspension of the convention in 
such circumstances is the unquestioned right of a state 
adversely affected by such essential change.'' \114\
---------------------------------------------------------------------------
    \113\ Ibid., Comment a, at 218.
    \114\ See V Hackworth, supra, pp. 353-356 and 14 Whiteman, supra, 
at 483-485. On December 21, 1945, President Truman revoked the 
proclamation suspending the convention.
---------------------------------------------------------------------------
Jus cogens
    Treaties that conflict with a newly emergent norm of 
international law become void as of the date the new rule of 
jus cogens is recognized or determined to exist by the 
international community.\115\ When a rule of international law 
falls into the category of jus cogens, it admits of no 
derogation. Accordingly, it prevails over and invalidates 
international agreements and other rules of international law 
in conflict with it. The condemnation of aggression in the U.N. 
Charter and of genocide in the Convention on the Prevention and 
Punishment of the Crime of Genocide are asserted to have the 
character of jus cogens.\116\
---------------------------------------------------------------------------
    \115\ Vienna Convention, supra, Article 64.
    \116\ Rest. 3d, supra, Sec. 102, Comment k; and Brownlie, Ian. 
Principles of Public International Law. Clarendon Press, 1990, p. 513.
---------------------------------------------------------------------------
Severance of diplomatic relations
    The Vienna Convention on the Law of Treaties provides that 
the severance of diplomatic or consular relations generally 
does not affect the legal relations of parties to a treaty. 
Legal relations established by a treaty may be adversely 
affected, however, in cases where diplomatic or consular 
relations are indispensable for the application of the 
treaty.\117\
---------------------------------------------------------------------------
    \117\ Vienna Convention on the Law of Treaties, supra, Article 63.
---------------------------------------------------------------------------
Hostilities
    The Vienna Convention expressly reserves questions with 
respect to the effect of hostilities on treaty relations.\118\ 
The older view seems to have been that the outbreak of 
hostilities terminated treaties between the warring parties or, 
at the very least, suspended them. The U.N. Charter's 
condemnation of aggression, however, has introduced an element 
of uncertainty into the older view's conceptual underpinnings. 
Therefore, whether hostilities affect adversely all or some of 
the warring parties' treaty relationships is 
problematical.\119\ The Restatement (Third) notes that court 
decisions in the United States regarding the effect of war on 
treaties have traditionally ``dealt with them pragmatically, 
preserving or annulling as the necessities of war exact.'' 
\120\
---------------------------------------------------------------------------
    \118\ Ibid., Article 73. ``The provisions of the present Convention 
shall not prejudge any question that may arise in regard to a treaty * 
* * from the outbreak of hostilities between States.''
    \119\ Rest. 3d, supra, Sec. 336, Comment e.
    \120\ Ibid., Reporters' Note 4, p. 221, quoting Techt v. Hughes, 
229 N.Y. 221, 241, 128 N.E. 185, 191, cert. den., 254 U.S. 643 (1920).
---------------------------------------------------------------------------
State succession
    In international law rights and obligations arising out of 
international agreements, as well as from other sources, belong 
to the state, not to the government which represents it. 
Accordingly, changes in government as a rule do not interrupt 
the rights and obligations of successor governments. However, 
such may not be the case when one state succeeds, that is, 
replaces, another in terms of being responsible for the 
international relations of a given territory.\121\ State 
succession has happened for centuries. But the breakup of the 
colonial empires of the European powers, the dissolution of the 
Soviet Union and of Yugoslavia, and the emergence of numerous 
new states in recent decades has given particular urgency to 
the question of whether treaties continue to remain in force in 
such circumstances. International law and state practice on the 
issue, however, have been described as ``uncertain and 
confused.'' \122\
---------------------------------------------------------------------------
    \121\ Ibid., Article 2, para. 1(b). `` `[S]uccession of States' 
means the replacement of one state by another in the responsibility for 
the international relations of territory.''
    \122\ Rest. 3d, supra, Sec. 208, Reporters' Note 1.
---------------------------------------------------------------------------
    As it does with respect to the effect of war on treaties, 
the Vienna Convention on the Law of Treaties makes no effort to 
resolve questions concerning the implications of state 
succession for treaty rights and obligations.\123\ Instead, a 
subsequent agreement approved by a U.N. conference in 1978, the 
Vienna Convention on Succession of States in Respect of 
Treaties, attempted to codify the pertinent legal 
standards.\124\ But that agreement has never obtained 
sufficient ratifications to enter into effect.\125\ Moreover, 
the standards set forth in that convention differ in 
significant respects from those articulated in the Restatement 
(Third), and both deviate in some respects from what appears to 
be U.S. practice.
---------------------------------------------------------------------------
    \123\ Vienna Convention on the Law of Treaties, supra, Article 73, 
provides, in part, that ``[t]he provisions of the present Convention 
shall not prejudge any question * * * in regard to a treaty from a 
succession of States * * *''
    \124\ U.N. Doc. A/CONF. 80/31 (August 22, 1978); 17 ILM 1788 
(1978).
    \125\ The United States has never signed the agreement.
---------------------------------------------------------------------------
    The standards set forth in the Vienna Convention on 
Succession of States in Respect of Treaties and in the 
Restatement (Third) vary according to the nature of the 
succession that has occurred. They set forth the following main 
categories:
          (1) When part of the territory of an existing state 
        becomes part of another existing state, both the 
        Convention and the Restatement (Third) provide that the 
        treaties of the predecessor state cease to have effect 
        in that part and the treaties of the successor state 
        come into force.\126\
---------------------------------------------------------------------------
    \126\ Vienna Convention on Succession of States in Respect of 
Treaties, supra, Article 15; Rest. 3d, supra, Sec. 210(1).
---------------------------------------------------------------------------
          (2) When two or more states unite, the Convention 
        states that the treaties of both continue in effect but 
        only with respect to the part of the territory of the 
        new state to which the treaties previously applied. The 
        Restatement (Third) does not disagree but stresses that 
        ``it is sometimes difficult to distinguish between an 
        absorption of one state by another and the merger of 
        two or more states into a Federal union.'' In the case 
        of absorption, the Restatement (Third) states that the 
        treaties of the absorbed state are terminated and those 
        of the absorbing state become applicable to the whole 
        territory.\127\
---------------------------------------------------------------------------
    \127\ Ibid., Article 31 and Sec. 210(2) and Comment c.
---------------------------------------------------------------------------
          (3) When a former colony becomes a new state (termed 
        a ``newly independent State'' by the Convention), both 
        the Convention and the Restatement (Third) provide that 
        the new state does not succeed to the treaty rights and 
        obligations of the colonial power, unless it expressly 
        agrees to them or by conduct is considered to have 
        agreed to them. This rule is designated the ``clean 
        slate'' rule.\128\
---------------------------------------------------------------------------
    \128\ Ibid., Article 16 and Sec. 210(3).
---------------------------------------------------------------------------
          (4) When a new state emerges from a condition other 
        than colonialism, e.g., as the result of secession or 
        the dissolution of the predecessor state, the 
        Convention states a ``continuity'' rule, i.e., that the 
        international agreements of the predecessor state 
        continue in force for every successor state. The 
        Restatement (Third), in contrast, does not 
        differentiate these states from former colonies and 
        applies the clean slate rule to both.\129\ The 
        Convention's differentiation is based on the notion 
        that a colony had no voice in the making of the 
        international agreements of the colonial power, whereas 
        states arising from secession or dissolution 
        purportedly did. The Restatement (Third) rejects that 
        distinction, contending that ``it does not reflect 
        consistent practice and would be difficult to apply.'' 
        \130\
---------------------------------------------------------------------------
    \129\ Ibid., Articles 34-35 and Sec. 210(3).
    \130\ Rest. 3d, supra, Sec. 210, Reporters' Note 4.

    Both the convention and the Restatement (Third) provide 
that pre-existing boundary and other territorial agreements 
continue to be binding on successor states.\131\
---------------------------------------------------------------------------
    \131\ Ibid., Article 11 and Sec. 210(4).
---------------------------------------------------------------------------
    State practice with respect to state succession and treaty 
obligations has not been consistent, however. A 1991 State 
Department study of past state practice found that, 
historically, a spectrum of ``divergent approaches'' has been 
employed depending on the circumstances.\132\ The Restatement 
(Third) notes that in practice even states emerging from 
colonial status ``have found it inconvenient to wipe out 
entirely the often complex network of agreements that had been 
applicable to their territory.'' \133\ U.S. practice, at least 
in recent times, appears to have generally employed the 
continuity principle while being open to negotiations on 
whether particular treaties ought to continue to apply. That 
has been the case with respect to the successor states of the 
former Soviet Union and the former Yugoslavia, the breakup of 
Czechoslovakia, and the separation of Eritrea from 
Ethiopia.\134\
---------------------------------------------------------------------------
    \132\ Williamson, Edwin D., and Osborne, John E., ``A U.S. 
Perspective on Treaty Succession and Related Issues in the Wake of the 
Breakup of the USSR and Yugoslavia,'' 33 Virginia Journal of 
International Law 261, 263-64 (1993).
    \133\ Rest. 3d, supra, Sec. 210, Reporters' Note 3.
    \134\ Williamson, supra, note 132, pp. 261-272; Williams, Paul R., 
``The Treaty Obligations of the Successor States of the Former Soviet 
Union, Yugoslavia, and Czechoslovakia: Do They Continue in Force?'' 23 
Denver Journal of International Law and Policy 1 (1994); and Nash, 
Marian (Leich), ``Contemporary Practice of the United States Relating 
to International Law,'' 87 American Journal of International Law 595 
(1993).
---------------------------------------------------------------------------

    F. U.S. Law and Practice in Terminating International Agreements

                                general

    The constitutional requirements that attend the termination 
of treaties remain a matter of some controversy. The Senate 
Foreign Relations Committee has from time to time contended 
that the termination of treaties requires conjoint action by 
the President and the Senate (or Congress).\135\ But in the 
most recent instance of open conflict between the President and 
some Members of the Senate regarding the termination of a 
treaty--President Carter's termination of the Mutual Defense 
Treaty with Taiwan in 1979--the Federal trial and appellate 
courts reached contrary conclusions regarding the requirements 
of the Constitution for terminating a treaty and the Supreme 
Court avoided resolving the constitutional question.\136\
---------------------------------------------------------------------------
    \135\ The Senate Committee on Foreign Relations early on took the 
position that ``[t]he President and Senate, acting together, [were 
`competent'] to terminate a treaty'' but allowed that in certain 
circumstances a treaty could be terminated by joint action of the 
President and Congress. S. Rept. 97, 34th Cong., 1st Sess. (1857), p. 
3. In 1979 the Senate Committee on Foreign Relations gave renewed 
consideration to the treaty termination issue in the context of 
President Carter's unilateral termination of the 1954 Mutual Defense 
Treaty with Taiwan. It said: ``The Committee has reviewed its actions 
over the last decade because it believes it important that the issue of 
treaty termination be viewed in context. That context * * * is a 
history of efforts by the Committee and the Senate to ensure the 
constitutional prerogatives of the Congress and the special role 
accorded the Senate by the treaty Clause are respected by the executive 
branch * * * The constitutional role of the Congress has too often been 
short-circuited because it was viewed in the executive branch and even 
by some Members of Congress as an impediment to the expeditious 
adoption of substantive policies commanding the support of a majority. 
Thus, when in our recent history the substance of those policies lost 
that support, the procedures once available as checks had atrophied, 
and the Congress was forced to struggle to reclaim its powers. The 
lesson was learned the hard way: procedural requirements prescribed by 
the Constitution must not be disregarded in the name of efficiency, and 
the substance of a policy, however, attractive, can never justify 
circumventing the procedure required by the Constitution for its 
adoption * * * The issue of treaty termination, in the judgment of the 
Committee, must be viewed pursuant to this principle. * * * [T]he 
Committee * * * cannot accept the notion advanced by administration 
witnesses that the President possesses an `implied' power to terminate 
any treaty, with any country, under any circumstances, irrespective of 
what action may have been taken by the Congress by law or by the Senate 
in a reservation to that treaty. Such an argument in this context is at 
odds with the most fundamental precepts underlying the separation of 
powers doctrine * * *.'' S. Rept. 96-119, 96th Cong., 1st Sess. (1979), 
pp. 5-6.
    \136\ A number of Members of Congress attempted to force a judicial 
resolution of the legality of President Carter's action by filing suit 
in Federal court. At trial a Federal district court initially held that 
``any decision of the United States to terminate [the Mutual Defense 
Treaty of 1954] must be made with the advice and consent of the Senate 
or the approval of both houses of Congress. That decision cannot be 
made by the President alone.'' Goldwater v. Carter, 481 F. Supp. 949, 
965 (D.D.C. 1979). But the U.S. Court of Appeals for the District of 
Columbia reversed and held that ``the President did not exceed his 
authority when he took action to withdraw from the * * * treaty, 
without the consent of the Senate or other legislative concurrences.'' 
Goldwater v. Carter, 617 F. 2d 697, 709 (D.C. Cir. 1979). The Supreme 
Court then vacated that decision and ordered the complaint dismissed. 
Goldwater v. Carter, 444 U.S. 996 (1979). In so doing the court issued 
no majority opinion. Then-Justice Rehnquist, joined by Chief Justice 
Burger and Justices Stewart and Stevens, opined that the issue was a 
political question inappropriate for judicial resolution. Justice 
Powell concurred in the court's judgment but disagreed with the 
plurality's reasoning. He said that the case should be dismissed on 
grounds of ripeness but contended that the political question doctrine 
did not stand as an inevitable barrier to judicial resolution of the 
constitutional question. Justice Marshall concurred in the result 
without opinion. Justices Blackmun and White argued that the case 
should be scheduled for briefing and oral argument. Justice Brennan 
dissented, arguing that the decision of the Court of Appeals should be 
affirmed to the extent ``it rests upon the President's well-established 
authority to recognize, and withdraw recognition from, foreign 
governments.'' 444 U.S. at 1006. The direction by the Supreme Court to 
dismiss the complaint vitiates any precedential value of the earlier 
rulings and leaves the issue of Presidential authority to terminate a 
treaty effectively unresolved. However, it should be noted that 
subsequent decisions have made it difficult for Members of Congress to 
bring suit on separation of powers issues. See, for example, Raines v. 
Byrd, 521 U.S. 811 (1997) (Members of Congress held to lack standing to 
challenge the constitutionality of the ``Line Item Veto Act'') and 
Campbell v. Clinton, 203 F. 3d 19 (D.C. Cir.), cert. den., 2000 
U.S.LEXIS 4928 (2000) (Members of Congress held to lack standing to 
challenge the constitutionality of U.S. participation in NATO's 
military actions against the former Yugoslavia).
---------------------------------------------------------------------------
    The Restatement (Third) subscribes to the view that the 
power to terminate treaties is lodged in the President.\137\ 
With regard to international agreements that do not take the 
form of treaties, the conclusion is generally true or, at 
least, has not been seriously challenged in the past. However, 
as indicated at the outset, the assertion of an exclusive 
Presidential power in the context of a treaty is controversial 
and flies in the face of a substantial number of precedents in 
which the Senate or Congress have been participants.
---------------------------------------------------------------------------
    \137\ Rest. 3d, supra, Sec. 339. Section 339, captioned ``Authority 
to Suspend or Terminate International Agreement: Law of the United 
States,'' reads as follows: ``Under the law of the United States, the 
President has the power (a) to suspend or terminate an agreement in 
accordance with its terms; (b) to make the determination that would 
justify the United States in terminating or suspending an agreement 
because of its violation by another party or because of supervening 
events, and to proceed to terminate or suspend the agreement on behalf 
of the United States; or (c) to elect in a particular case not to 
suspend or terminate an agreement.''
---------------------------------------------------------------------------
    In so far as domestic law and practice are concerned, two 
noncontroversial observations may be made with respect to the 
termination of an international agreement. First, as the 
official spokesperson with other governments, the President is 
the person who communicates the notice of impending 
termination.\138\ Second, the termination of an international 
agreement is a political act, and, accordingly, the courts do 
not terminate international agreements.\139\ However, whether a 
treaty to be legally as distinguished from effectively 
terminated requires conjoint action of the political branches 
remains, as previously indicated, a live issue which the 
Supreme Court has sidestepped in the past.
---------------------------------------------------------------------------
    \138\ ``The President is the sole organ of the Nation in its 
external relations, and its sole representative with foreign nations.'' 
United States v. Curtiss-Wright Export Corp., 299 U.S. at 319, quoting 
John Marshall in debate in the House of Representatives on March 7, 
1800. ``* * * Congress has no power to communicate directly with 
foreign powers.'' Willoughby, Constitutional Law of the United States, 
v. 1, 1929, p. 587 (hereafter cited as 1 Willoughby).
    \139\ Charlton v. Kelly, 229 U.S. 447, 474 (1913).
---------------------------------------------------------------------------
    ``The procedure by which, from the viewpoint of national 
law and practice, treaties may be terminated involves questions 
to be resolved in accordance with constitutional and related 
procedures in each country. The United States Constitution is 
silent with respect to the power to terminate treaties. The 
matter was not discussed in the debates of the Constitutional 
Convention in Philadelphia.'' \140\ ``The Constitution tells us 
only who can make treaties for the United States; it does not 
say who can unmake them.'' \141\ As a consequence of the 
Constitution's silence in this regard, ``there has been some 
confusion of doctrine upon this point and a variety in 
practice.'' \142\
---------------------------------------------------------------------------
    \140\ 14 Whiteman, supra, p. 461.
    \141\ Henkin, supra, p. 211.
    \142\ 1 Willoughby, supra, p. 581.
---------------------------------------------------------------------------
    The doctrinal confusion stems in large measure from various 
seemingly inconsistent or opposing concepts. As explained by 
one noted legal scholar:
          From the point of view of American law * * *, the 
        Constitution does not limit the authority to terminate 
        treaties to the possessors of the treatymaking power, 
        i.e., the President and Senate * * *. Article VI [of 
        the Constitution] vests treaties with the same domestic 
        status as Federal statutes, which means that the courts 
        must disregard treaty provisions insofar as they are 
        inconsistent with later acts of Congress. A Federal 
        statute inconsistent with the terms of an existing 
        treaty consequently operates to deprive such treaty of 
        its force as law within this country. Under Article VI 
        the Congress can, in effect, terminate a treaty, so far 
        as its effect in our domestic law is concerned. Such 
        congressional termination, the Supreme Court has said, 
        ``must control in our courts as the later expression of 
        our municipal law, even though it conflicted with the 
        provision of the treaty and the international 
        obligation remained unaffected.''
          At the same time, it is clear that, in such a case, 
        the international obligation does remain unaffected * * 
        *. The repeal of a treaty by a later statute is only a 
        matter of American law. Regardless of the abrogation of 
        the municipal effect of a treaty by an overriding 
        statute, the treaty is not abrogated in the 
        international sense. * * * \143\
---------------------------------------------------------------------------
    \143\ Schwartz, The Powers of Government, v. II (1963), p. 130.

    In addition to effectively terminating a treaty by 
legislatively negating its municipal consequences, the Congress 
may effect a termination in other ways, such as by a 
declaration of war \144\ or, in the case of non-self-executing 
treaties, by failing to approve necessary implementing 
legislation.
---------------------------------------------------------------------------
    \144\ See Bas v. Tingy, 4 Dall. (4 U.S.) 37 (1800); Wright, The 
Control of American Foreign Relations, p. 256; cf. 14 Whiteman, p. 290 
et seq.
---------------------------------------------------------------------------
    All of the foregoing is true notwithstanding that ``[i]n so 
far as a treaty is regarded as an international compact, it 
seems almost too clear for argument that Congress [as 
distinguished from the Senate], not having been made by the 
Constitution a participant in the treatymaking power, has no 
constitutional authority to exercise that power either 
affirmatively or negatively, that is, by creating or destroying 
international agreements.'' \145\ Moreover, ``[i]t may be noted 
that Congress has no means whereby it may itself give notice of 
termination of a treaty to the foreign government concerned 
under the Constitution; Congress has no power to communicate 
directly with foreign Powers.'' \146\ ``But it is well for the 
Senate and for Congress also to remember that it does not lie 
in our hands alone to give this notice to a foreign Government. 
We can not give the notice.'' \147\
---------------------------------------------------------------------------
    \145\ 1 Willoughby, supra, p. 585.
    \146\ Ibid., p. 587.
    \147\ Senator Lodge, chairman, Committee on Foreign Relations, 48 
Congressional Record 587 (1911).
---------------------------------------------------------------------------
    To the President is ascribed the role of being the ``organ 
of foreign relations.'' The Supreme Court has described this 
role as ``the very delicate, plenary and exclusive power of the 
President as the sole organ of the Federal government in the 
field of international relations.'' \148\ Although the Congress 
can effectively terminate a treaty's domestic effect by passage 
of a superseding public law (which requires the President's 
signature or the override of a veto), the termination of the 
outstanding international obligation seems to reside with the 
President since he alone is able to communicate with foreign 
powers. ``The only organ of this Government recognized by 
foreign Governments is the Executive--the President of the 
United States. If he does give the notice, it will be given.'' 
\149\
---------------------------------------------------------------------------
    \148\ United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 
320 (1936).
    \149\ Senator Lodge, supra, note 146.
---------------------------------------------------------------------------
    Whether the President alone can terminate a treaty's 
domestic effect remains an open question.\150\ As a practical 
matter, however, the President may exercise this power since 
the courts have held that they are conclusively bound by an 
executive determination with regard to whether a treaty is 
still in effect.\151\ The same result may apply to a 
congressional termination, particularly if it is regarded as a 
declaration of war.\152\
---------------------------------------------------------------------------
    \150\ See Van der Weyde v. Ocean Transport Co., 297 U.S. 114, 117 
(1936).
    \151\ See Terlinden v. Ames, 184 U.S. 270, 290 (1902); Charlton v. 
Kelly, 229 U.S. 447, 474-476 (1913).
    \152\ See Bas v. Tingy, 4 Dall. 37 (4 U.S.) (1800).
---------------------------------------------------------------------------

                                treaties

    ``International law,'' it has been observed, ``* * * 
recognizes the power--though not the right--of a state party to 
break a treaty and pay damages or abide other international 
consequences.'' \153\ That the U.S. Government has the 
constitutional power to terminate treaties on behalf of the 
United States is clear.\154\ It is a power which inheres in 
sovereignty and is not negated by the supremacy clause or any 
other clause of the Constitution.\155\ Although the other party 
to a broken agreement has a `legitimate grievance,' its avenue 
of redress is ``by the negotiation of a new agreement, or 
failing peaceful modes of settlement, by more drastic means, 
should the grievance be deemed a sufficiently serious one.'' 
\156\ ``A violation of a treaty obligation, as of any other 
obligation, may give rise to a right in the other party to take 
non-forcible reprisals and these reprisals may properly relate 
to the defaulting party's rights under the treaty.'' \157\ But 
``[t]he question whether our government is justified in 
disregarding its engagements with another Nation is not one for 
the determination of the courts * * *. This court is not a 
censor of the morals of other departments of the government * * 
*.'' \158\
---------------------------------------------------------------------------
    \153\ Henkin, supra, p. 211.
    \154\ The Chinese Exclusion Case, 130 U.S. 581, 602 (1889).
    \155\ Ibid.
    \156\ 1 Willoughby, supra, note 115, p. 582; cf. 14 Whiteman, 
supra, note 8, pp. 468 et seq.
    \157\ U.N. International Law Commission, 14 Whiteman, supra, note 
8, p. 468.
    \158\ The Chinese Exclusion Case, 130 U.S. 581, 602-603 (1889).
---------------------------------------------------------------------------
    The actual practice whereby treaties have been terminated 
demonstrates considerable variation. ``In some cases treaties 
have been terminated by the President, in accordance with their 
terms pursuant to action by Congress. In other cases action was 
taken by the President pursuant to resolutions of the Senate 
alone. In still others the initiative was taken by the 
President, in some cases independently, and in others his 
action was later notified to one or both Houses of Congress and 
approved by both Houses. No settled rule or procedure has been 
followed.'' \159\ Hackworth quoted the Solicitor of the 
Department of State as saying ``that the choice of method would 
seem to depend either upon the importance of the international 
question or upon the preference of the Executive.'' \160\ The 
``actual practice'' has been summarized as follows:
---------------------------------------------------------------------------
    \159\ 14 Whiteman, supra, p. 460.
    \160\ V Hackworth, supra, p. 319.
---------------------------------------------------------------------------
          Executive action pursuant to prior authorization or 
        direction by the Congress;
          Executive action pursuant to prior authorization or 
        direction by the Senate;
          Executive action without prior specific authorization 
        or direction, but with subsequent approval by the 
        Congress;
          Executive action without prior specific authorization 
        or direction, but with subsequent approval by the 
        Senate;
          Executive action without specific prior authorization 
        or direction and without subsequent approval by either 
        the Congress or the Senate.\161\
---------------------------------------------------------------------------
    \161\ 14 Whiteman, supra, p. 462.
---------------------------------------------------------------------------
Executive action pursuant to prior authorization or direction by the 
        Congress
    The instances in which the Congress, by joint resolution, 
has authorized or directed the President to terminate treaties 
``have been considerable in number'': \162\
---------------------------------------------------------------------------
    \162\ 1 Willoughby, supra, p. 583.
---------------------------------------------------------------------------
          In some instances the congressional action for the 
        denunciation of a treaty has empowered the President 
        ``at his discretion'' to give the necessary notice to 
        the foreign Governments concerned. In other instances, 
        he has been directed, that is, charged with the duty, 
        of giving the notice. For example the Joint Resolution 
        of Congress of January 18, 1865, relative to the 
        Canadian Reciprocity Treaty, declared that notice of 
        denunciation should be given, and that ``the President 
        of the United States is hereby charged with the 
        communication of such notice.'' Of the same tenor was 
        the Joint Resolution of March 4, 1883, relative to the 
        Treaty of Washington with Great Britain. [This 
        Resolution declared that articles of the treaty ought 
        to be terminated at the earliest time, and that to this 
        end, ``the President be, and he hereby is, directed to 
        give notice to the government of His Britannic Majesty 
        that the provisions of * * * the articles aforesaid 
        will terminate and be of no force on the expiration of 
        two years next after the time of giving such notice.''] 
        \163\
---------------------------------------------------------------------------
    \163\ Ibid.

    In 1846, pursuant to a request from President Polk, a joint 
resolution was enacted providing that ``the President * * * be, 
and he is hereby, authorized, at his discretion, to give to the 
Government of Great Britain the notice required by the second 
article of the said convention of the 6th of August, 1827, for 
the abrogation of the same.'' \164\ That convention provided 
for the joint occupancy of certain parts of the Oregon 
Territory. Similarly, the Seaman's Act of March 4, 1915 \165\ 
requested and directed the President to give notice of the 
termination of the treaty provisions in conflict with the Act. 
Section 16 of the Act expressly provided that ``the President 
be * * * requested and directed * * * to give notice to the 
several Governments, respectively, that so much as herein 
described of all such treaties and conventions between the 
United States and foreign Governments will terminate on the 
expiration of such periods after notices have been given as may 
be required in such treaties and conventions.''
---------------------------------------------------------------------------
    \164\ 9 Stat. 108 (1846).
    \165\ 38 Stat. 1164.
---------------------------------------------------------------------------
    A subsequent Supreme Court decision noted that ``[i]t 
appears that, in consequence, notice was given and that a large 
number of treaties were terminated in whole or in part.'' \166\ 
But in Van der Weyde v. Ocean Transport Co., the court upheld 
the method of terminating treaties used in the Seamen's Act, 
stating: ``From every point of view, it was incumbent upon the 
President, charged with the conduct of negotiations with 
foreign governments and also with the duty to take care that 
the laws of the United States are faithfully executed, to reach 
a conclusion as to the inconsistency between the provisions of 
the treaty and the provisions of the new law.'' The court did 
not opine on whether the language of the statute was binding, 
but stated simply that the President was obligated to 
distinguish between consistencies and inconsistencies in 
foreign treaties and the law in question. Moreover, the court 
expressly stated that the question of the sufficiency of 
Presidential power alone to terminate the treaties was not 
before it; ``* * * the question as to the authority of the 
Executive in the absence of congressional action, or of action 
by the treatymaking power, to denounce a treaty of the United 
States is not here involved.'' \167\
---------------------------------------------------------------------------
    \166\ Van der Weyde v. Ocean Transport Co., 297 U.S. 114, 116 
(1936).
    \167\ Ibid., pp. 117-118.
---------------------------------------------------------------------------
    More recently, Congress mandated the termination of a 
treaty in the Anti-Apartheid Act of 1986. Section 313 of that 
Act required the Secretary of State to terminate immediately, 
in accordance with its terms, the tax treaty and protocol with 
South Africa that had been concluded on December 13, 1946.\168\
---------------------------------------------------------------------------
    \168\ Public Law 99-440, Sec. 313 (October 2, 1987); 100 Stat. 
3515; 22 U.S.C. 5063. The treaty provided for termination upon 1 year's 
notice.
---------------------------------------------------------------------------
    The propriety of congressional action advising or directing 
the President to notify foreign governments of the termination 
of treaties between them and the United States has not gone 
unchallenged. In 1879 President Hayes vetoed the Chinese 
Immigration Bill of that year on the ground, inter alia, that 
it instructed him to abrogate certain articles of the existing 
treaty with China. He said: ``As the power of modifying an 
existing treaty, whether by advising or striking out 
provisions, is a part of the treatymaking power under the 
Constitution, its exercise is not competent for Congress, nor 
would the assent of China to this partial abrogation of the 
treaty make the action of Congress in thus procuring an 
amendment of a treaty, a competent exercise of authority under 
the Constitution.'' \169\
---------------------------------------------------------------------------
    \169\ 1 Willoughby, supra, p. 584.
---------------------------------------------------------------------------
    Similarly, in 1920 President Wilson refused to carry out 
Section 34 of the Merchant Marine Act of that year. That 
section directed the President to terminate any provisions of 
existing treaties that restricted the right of the United 
States ``to impose discriminating customs duties on imports 
entering the United States and discriminatory tonnage duties * 
* *'' A Department of State press release of September 24, 
1920, in part, stated:
          The Department of State has been informed by the 
        President that he does not deem the direction, 
        contained in Section 34 * * * an exercise of any 
        constitutional power possessed by the Congress.
          Secretary Colby, commenting on the point made by the 
        President that Congress had exceeded its powers, called 
        attention to the veto by President Hayes of an Act 
        passed by Congress in 1879. * * * President Hayes 
        declared that ``the power of making new treaties or of 
        modifying existing treaties is not lodged by the 
        Constitution in Congress, but in the President, by and 
        with the advice and consent of the Senate, as shown by 
        the concurrence of two-thirds of that body.'' \170\
---------------------------------------------------------------------------
    \170\ V Hackworth, supra, p. 323. A memorandum from the Solicitor 
for the State Department buttressed this view as follows: ``Congress 
may pass an act violative of a treaty. It may express its sense that a 
treaty should be terminated. But it cannot in effect undertake legally 
to modify a treaty no matter what methods it may employ. In doing that, 
it, in effect, attempts to conduct diplomatic negotiations and to 
encroach on the treatymaking power composed of the President and the 
Senate.''
---------------------------------------------------------------------------
Executive action pursuant to prior authorization or direction by the 
        Senate
    The Department of State has taken the position that the 
principals who can execute treaties can terminate them. ``* * * 
[T]he power that makes the treaty can likewise revoke it; in 
other words, that the President acting in conjunction with the 
Senate of the United States would be authorized to terminate a 
treaty to which the United States is a party.'' \171\ This 
method has also received judicial recognition: ``The President 
and Senate may denounce the treaty and thus terminate its 
life.'' \172\
---------------------------------------------------------------------------
    \171\ Ibid., p. 319.
    \172\ Techt v. Hughes, 229 N.Y. 222, 243 (1920).
---------------------------------------------------------------------------
    This procedure was apparently first employed in the mid-
1850s and precipitated considerable controversy. On January 26, 
1855, the House passed a joint resolution authorizing the 
President to give notice of the termination of the 1826 Treaty 
of Friendship, Commerce, and Navigation between Denmark and the 
United States according to its terms.\173\ But on March 3, 
1855, the Senate adopted instead a simple resolution 
authorizing the President to do so; and President Pierce on 
April 14 of that year gave the requisite notice on the basis of 
the latter authority. Subsequently, at the initiative of 
Senator Sumner, the Senate directed the Committee on Foreign 
Relations to examine the constitutionality of this procedure 
and whether a statute was required to effect the 
termination.\174\ The committee did so and concluded that the 
procedure was constitutionally proper: ``The Committees are 
clear in the opinion that it is competent for the President and 
Senate, acting together, to terminate in the manner prescribed 
by the eleventh article without the aid or intervention of 
legislation by Congress, and that when so terminated it is at 
an end to every intent both as a contract between the 
Governments and as a law of the land.'' \175\ The Senate, 
subsequently, had an extensive debate on the report and on a 
resolution reported by the committee endorsing that view,\176\ 
but the resolution never came to a final vote.
---------------------------------------------------------------------------
    \173\ Congressional Globe, 33d Cong., 2d Sess. (1855), pp. 414-415.
    \174\ Ibid., 34th Cong., 1st Sess. (March 6, 1856), pp. 599-607.
    \175\ S. Rept. 97, 34th Cong., 1st Sess. (1856), p. 3.
    \176\ Congressional Globe, 34th Cong., 1st Sess. (May 8, 1856), p. 
826 (text of resolution) and pp. 1146-1158 (debate).
---------------------------------------------------------------------------
    This procedure has been used on subsequent occasions. In 
1921, for instance, President Wilson sought the Senate's advice 
and consent to the denunciation of the International Sanitary 
Convention of 1903. That convention had been superseded by a 
1912 convention but remained in force for those parties which 
had not ratified the latter convention. The Public Health 
Service believed that situation to ``prevent the enforcement of 
measures necessary for the prevention of diseases from abroad'' 
and said that it would be ``infinitely better to have no 
international sanitary convention than to continue to abide by 
the terms of the Paris convention of 1903.'' \177\ By a 
resolution adopted by a two-thirds majority on May 26, 1921, 
the Senate gave its advice and consent to the denunciation of 
the convention; and the Secretary of State communicated notice 
of the denunciation to the convention's depositary.\178\
---------------------------------------------------------------------------
    \177\ See 61 Congressional Record 1794 (May 26, 1921) (letter of 
April 12, 1920, from D.F. Houston, Secretary of the Treasury, to the 
Secretary of State).
    \178\ V Hackworth, supra, p. 322.
---------------------------------------------------------------------------
Executive action without prior specific authorization or direction, but 
        with subsequent approval by the Congress
    In 1864 the Secretary of State directed the U.S. Minister 
in London to give the British Government the stipulated 6-
months' notice of an intention to terminate the Great Lakes 
Agreement of 1817 regulating armaments on the Great Lakes. The 
minister did so, and a few months later Congress by joint 
resolution ``adopted and ratified'' the notice of 
termination.\179\ In 1911, President Taft, without 
congressional direction but after House passage of a strongly 
worded joint resolution, gave notice to the Russian Government 
of the termination of the commercial treaty of 1832 with that 
country. Thereafter, he communicated his action to the Senate, 
``as a part of the treatymaking power of this Government,'' for 
its approval. The Senate Foreign Relations Committee, however, 
reported a joint resolution by which the notice of termination 
by the President was ``adopted and ratified.'' This joint 
resolution was passed by both houses of Congress and was signed 
by the President on December 21, 1911.\180\
---------------------------------------------------------------------------
    \179\ 5 Moore, supra, p. 323.
    \180\ 37 Stat. 627 (1911); V Hackworth, pp. 319-320; 1 Willoughby, 
p. 582.
---------------------------------------------------------------------------
Executive action without specific prior authorization or direction, but 
        with subsequent approval by the Senate
    Although many authorities recognize this method and affirm 
its use, supporting examples are rarely provided. It should be 
noted that President Taft in terminating the 1832 treaty with 
Russia, discussed above, sought to employ this mode. Although 
his action was subsequently approved by joint congressional 
action, it seems likely that his initial approach was based on 
some precedent.
    During the Senate debate on the resolution, Senator Lodge, 
chairman, Foreign Relations Committee, endorsed the President's 
use of this method. He said:
          The President has entire authority to give that 
        notice and to ask for the approval of Congress or 
        approval of the Senate. He takes the view, which is 
        held by many of the best judges that the treatymaking 
        power is entirely able to terminate a treaty which 
        carries with it no legislation and the President did 
        nothing unusual in this action.\181\
---------------------------------------------------------------------------
    \181\ 48 Congressional Record 455 (1911).

                                 * * *

          The Senate and the President alone can end an 
        existing treaty by simply agreeing to a new one, they 
        can do it without any consultation with any other body, 
        and certainly where no legislation is involved it seems 
        to me that those who represented the high contracting 
        party in the making of a treaty are capable of 
        representing the high contracting party in its 
        unmaking.\182\
---------------------------------------------------------------------------
    \182\ Ibid., p. 480.
---------------------------------------------------------------------------
Executive action without specific prior authorization or direction, and 
        without subsequent approval by either the Congress or the 
        Senate
    There appears to be some uncertainty among the commentators 
as to the first termination of a treaty by a President acting 
alone. But one of the earliest appears to be the termination in 
1899 of the most-favored-nation clauses in a commercial treaty 
of 1850 with France, as extended to Switzerland under a 
commercial agreement entered into in 1898. A 1936 memorandum 
from the State Department to President Roosevelt cited that 
instance in justification of its conclusion that the President 
could also give notice of an intent to terminate a treaty with 
Italy ``without seeking the advice and consent of the Senate or 
the approval of Congress to such action.'' \183\ Hackworth 
gives a number of other examples of the ``President acting 
alone,'' including the terminations of a 1926 convention with 
Mexico for the prevention of smuggling in 1927; a 1927 
convention for the abolition of import and export prohibition 
and restriction in 1933; an 1871 Treaty of Commerce and 
Navigation with Italy in 1936; and a 1911 commercial treaty 
with Japan in 1939.\184\ Henkin adds to the list President 
Roosevelt's termination of an extradition treaty with Greece in 
1933 because Greece had refused to extradite a particular 
fugitive (Mr. Insull).\185\ President Johnson in 1965 gave 
notice of the withdrawal of the United States from the 
Convention for the Unification of Certain Rules Relating to 
International Transportation by Air (the Warsaw 
Convention),\186\ although he subsequently withdrew it 1 day 
before the denunciation would have taken effect.\187\
---------------------------------------------------------------------------
    \183\ V Hackworth, supra, pp. 330-331.
    \184\ Ibid., pp. 329-332.
    \185\ Henkin, supra, p. 212.
    \186\ 49 Stat. 3000; TS 876; 2 Bevans 983.
    \187\ See Senate Foreign Relations Committee Print, Termination of 
Treaties: The Constitutional Allocation of Power (1978), pp. 397-398, 
for additional examples given by the Department of State Legal Adviser.
---------------------------------------------------------------------------
    As already noted, President Carter, on December 15, 1978, 
gave notice of termination of the Mutual Defense Treaty with 
Taiwan. This action not only was taken without prior or 
subsequent authorization of Congress or of the Senate but in 
the face of an expression of the sense of Congress ``that there 
should be prior consultation between the Congress and the 
executive branch on any proposed policy changes affecting the 
continuation in force of the Mutual Defense Treaty of 1954.'' 
\188\
---------------------------------------------------------------------------
    \188\ 92 Stat. 730, 746 (1978).
---------------------------------------------------------------------------
    President Reagan also unilaterally terminated a treaty with 
little apparent protest that Congress was not involved. On May 
1, 1985, he ordered the imposition of economic sanctions 
against Nicaragua under the general authority of the 
International Emergency Economic Powers Act. These sanctions 
included notification of the intent to terminate the Treaty of 
Friendship, Commerce, and Navigation with Nicaragua. After the 
required waiting period of 1 year, the treaty was 
terminated.\189\
---------------------------------------------------------------------------
    \189\ U.S. Congress. House. Committee on Foreign Affairs. Congress 
and Foreign Policy, 1985-1986 (99th Cong.), p. 7.
---------------------------------------------------------------------------
    Finally, it should be noted that in one instance Congress 
adopted a statute that purported to terminate treaties of its 
own force, without the necessity of any notice by the 
President. On July 7, 1798, President Adams signed into law a 
measure providing ``[t]hat the United States are of right freed 
and exonerated from the stipulations of the treaties, and of 
the consular convention, heretofore concluded between the 
United States and France; and that the same shall not 
henceforth be regarded as legally obligatory on the government 
or citizens of the United States.'' \190\ In the 1856 report of 
the Senate Foreign Relations Committee previously referred to, 
this action by the Congress was viewed as being tantamount to a 
declaration of war.\191\ In fact, 2 days following its passage, 
the Congress authorized hostilities against France, and in Bas 
v. Tingy the Supreme Court regarded these acts as, in effect, 
declaring war.\192\ It might be noted, however, that France 
refused to recognize the abrogation of the treaties.\193\
---------------------------------------------------------------------------
    \190\ Act of July 7, 1798; 1 Stat. 578.
    \191\ S. Rept. 97, 34th Cong., 1st Sess., pp. 4-5.
    \192\ 4 Dall. (4 U.S.) 37 (1800).
    \193\ Moore, John Bassett. A Digest of International Law, Vol 5. 
U.S. Government Printing Office, 1906, pp. 608 et seq. A century later, 
Congress' action was held to have effectively terminated the treaties 
both municipally and internationally. See Hooper v. United States, 22 
Ct. Cl. 408, 425-26 (1887). Cf. Ship James Williams v. United States, 
37 Ct. Cl. 303 (1902).
---------------------------------------------------------------------------
    The arguments in support of the respective claims of the 
President and the Congress as regards the proper method of 
terminating treaties turn on a number of factors. The Senate's 
role in treaty termination is said to derive from its 
participation in treatymaking. With respect to the 
congressional role, much weight is given to a treaty's status 
as law pursuant to Article VI of the U.S. Constitution, that 
is, to the distinction between a treaty as an international 
compact, and, under American law, as domestic law. Arguments on 
behalf of Presidential claims focus prominently on his 
preeminent position in foreign affairs.\194\
---------------------------------------------------------------------------
    \194\ See Committee Print, supra, note 17, pp. 145 and 395 for 
elaboration of these views by former Senator Barry Goldwater and State 
Department Legal Adviser Herbert J. Hansel.
---------------------------------------------------------------------------

                          executive agreements

    As indicated at various points in the foregoing discussion, 
the President's authority to terminate executive agreements, in 
particular sole executive agreements, has not been seriously 
questioned in the past. To the extent that the agreement in 
question is authorized by statute or treaty, its mode of 
termination likely could be regulated by appropriate language 
in the authorizing statute or treaty. Thus, the Restatement 
(Third) states: ``If the United States Senate, in giving 
consent to a treaty, declares that it does so on condition that 
the President shall not terminate the treaty without the 
consent of Congress or of the Senate, or that he shall do so 
only in accordance with some other procedure, that condition 
presumably would be binding on the President if he proceeded to 
make the treaty. * * * Congress could impose such a condition 
in authorizing the President to conclude an executive agreement 
that depended on Congressional authority.'' \195\
---------------------------------------------------------------------------
    \195\ Rest. 3d, supra, Sec. 339, Comment a (emphasis added).
---------------------------------------------------------------------------
    In the Comprehensive Anti-Apartheid Act of 1986 Congress 
mandated the termination, in accordance with its provisions, of 
an executive agreement between the United States and South 
Africa, namely, the Agreement Between the Government of the 
United States of America and the Government of the Union of 
South Africa Relating to Air Services Between Their Respective 
Territories.\196\
---------------------------------------------------------------------------
    \196\ Public Law 99-440, supra, note 167, Sec. 306(b)(1). The 
agreement provided for termination upon 1 year's notice, and the 
Secretary of State gave the required notice. But the Act also directed 
the Secretary of Transportation to revoke the permit of any air carrier 
designated by the government of South Africa to provide service under 
the agreement 10 days after the Act's enactment. Upon suit challenging 
the Secretary's revocation of the permit of South African Airways 
pursuant to this provision as a violation of the agreement, the 
revocation was upheld on the grounds that a statute can supersede an 
international agreement. South African Airways v. Dole, 817 F. 2d 119 
(D.C. Cir.), cert. den., 484 U.S. 896 (1987).


       X. CONGRESSIONAL OVERSIGHT OF INTERNATIONAL AGREEMENTS \1\
---------------------------------------------------------------------------

    \1\ Prepared by Marjorie Ann Browne, Specialist in International 
Relations and Lois B. McHugh, Analyst in International Relations.
---------------------------------------------------------------------------
                              ----------                              

     A major problem for the legislative branch in the foreign 
policy area has been the tendency of the executive branch to 
make important international agreements by executive power 
alone, bypassing the advice and consent role of the Senate in 
treaty approval and sometimes failing to inform Congress of 
agreements with other countries that are considered binding 
under international law. Two objectives have predominated 
congressional perspectives on this issue. The first has been to 
ensure that Congress is aware of all important U.S. agreements. 
The second has been to provide a process which will ensure that 
important U.S. commitments are made with legislative approval.
     The primary tools available to Congress for its oversight 
of international agreements, especially international 
agreements other than treaties, start with the Case-Zablocki 
Act on transmittal of international agreements other than 
treaties.\2\ Other tools include consultations on the form of 
agreements; legislation to implement concluded agreements; 
legislation requiring congressional approval of concluded 
agreements; required reports to Congress on some aspect of 
international agreements; consultation between Members or 
congressional staff and appropriate executive branch officials; 
and hearings. This chapter discusses these and other tools for 
congressional oversight.
---------------------------------------------------------------------------
    \2\ Public Law 92-403, ``An Act to require that international 
agreements other than treaties, hereinafter entered into by the United 
States, be transmitted to the Congress within sixty days after the 
execution thereof.'' This law is often referred to as the Case-Zablocki 
Act, or the Case Act for short.
---------------------------------------------------------------------------

                          A. The Case Act \3\
---------------------------------------------------------------------------

    \3\ Ibid.
---------------------------------------------------------------------------
     The fundamental thrust of the Case Act is that the 
executive branch transmit to the Congress within 60 days after 
entry into force, the text of all international agreements not 
submitted to the Senate as treaties. All forms of agreements, 
whether written or oral, classified or unclassified, negotiated 
by the State Department or by other executive agencies, are 
included in the requirement. The goal is to ensure 
congressional knowledge of commitments made by the executive 
branch on behalf of the U.S. Government. Passage of the 
legislation has its roots in a number of earlier congressional 
efforts.

                                 origins

 Provisions for publication
     Congress historically tried to ensure that it receive 
copies of all treaties and agreements entered into force on 
behalf of the United States. The Public Printing Act of 1895 
required the Secretary of State, at the end of each Congress, 
to edit, print, bind, and distribute the Statutes at Large that 
would include not only ``all laws, joint and concurrent 
resolutions passed by Congress,'' but ``also all conventions, 
treaties, proclamations, and agreements.'' (28 Stat. 615) The 
language in this Act was further refined in 1938, to include:
         all treaties to which the United States is a party 
        that have been proclaimed since the date of the 
        adjournment of the regular session of Congress next 
        preceding; all international agreements other than 
        treaties to which the United States is a party that 
        have been signed, proclaimed, or with reference to 
        which any other final formality has been executed, 
        since that date; \4\
---------------------------------------------------------------------------
    \4\ 52 Stat. 760. The full citation follows: Printing Act, Chapter 
23, section 73 (28 Stat. 615), approved January 12, 1895; amended by 
Public Law 657, 75th Cong., approved June 16, 1938, 52 Stat. 760.

     In practice, a number of agreements escaped publication. 
In 1909, the Senate, in S. Res. 252, 60th Congress, authorized 
preparation, under the Senate Committee on Foreign Relations, 
of a ``compilation of treaties, conventions, important 
protocols, and international acts to which the United States 
may have been a party from 1778 to March 4, 1909, and such 
other material pertaining to treaties as may be recommended for 
insertion * * * by the Secretary of State.'' The resulting 
compilation eventually covered 1776 through 1937 and was the 
only official comprehensive collection of U.S. treaties and 
international agreements covering that period.\5\ In the 
interim period between 1938 and 1949, a hodgepodge of published 
bits and pieces was developed. The State Department issued as 
individual pamphlets the Executive Agreements Series (EAS) and 
Treaty Series (TS) until 1945 when the Treaties and Other 
International Acts Series (TIAS) replaced them as the form for 
the texts of individual agreements. Until the collection 
compiled under Charles Bevans was completed, no official 
consolidation of all U.S. treaties and international agreements 
concluded between 1937 and 1950 had been published.\6\
---------------------------------------------------------------------------
    \5\ Treaties, Conventions, International Acts, Protocols, and 
Agreements Between the United States and Other Powers. Volumes 1 and 2, 
covering 1776-1909, were compiled by William M. Malloy; the third, 
covering 1910-1923, by C.F. Redmond; and the fourth volume, covering 
1923-1937, was compiled by Edward J. Trenwith. Washington, D.C., U.S. 
Government Printing Office, 1910-1938.
    \6\ Treaties and Other International Agreements of the United 
States of America, 1776-1949. Compiled under the direction of Charles 
I. Bevans. Washington, D.C., U.S. Government Printing Office, 1968-1974 
and 1976; 13 vols.
---------------------------------------------------------------------------
     In 1950, when the function of publishing the U.S. Statutes 
at Large was transferred from the Secretary of State to the 
Administrator of General Services, Congress required the 
Secretary to publish, starting January 1, 1950,
         a compilation entitled ``United States Treaties and 
        Other International Agreements,'' which shall contain 
        all treaties to which the United States is a party that 
        have been proclaimed during each calendar year, and all 
        international agreements other than treaties to which 
        the United States is a party that have been signed, 
        proclaimed, or with reference to which any other final 
        formality has been executed, during each calendar 
        year.\7\
---------------------------------------------------------------------------
    \7\ 64 Stat. 980; 1 U.S.C. Sec. 112a.

     The 1895 Act had provided that a copy of the Statutes at 
Large would be automatically provided to the office of each 
Member of the House and Senate. The 1950 revision of section 
112 and addition of section 112a did not provide for 
distribution to offices in this manner. Public Law 94-59, in 
1975, stipulated that copies of the U.S. Treaties and Other 
International Agreements series would not be available to 
Senators and Representatives unless specifically requested in 
writing.\8\
---------------------------------------------------------------------------
    \8\ 89 Stat. 296.
---------------------------------------------------------------------------
    The inability of the State Department to publish promptly 
international agreements that had entered into force, 
accompanied by a near absence of public requests for copies of 
those agreements still unpublished, led to Congressional 
amendment in 1994 of 1 U.S.C. 112a.\9\ Section 138 of the 
Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 
(Public Law 103-236) which authorized the Secretary of State to 
determine that certain categories of international agreements 
do not require publication.\10\ Based on the criteria set forth 
in section 138, the Secretary of State issued a proposed rule 
or determination in October 1995 that was published as a final 
rule on February 26, 1996, listing the following categories of 
agreements as not requiring publication:
---------------------------------------------------------------------------
    \9\ Federal Register, October 23, 1995: 54319.
    \10\ Section 138. ``Publishing International Agreements.'' listed 
``the following criteria: (1) such agreements are not treaties * * * 
pursuant to section (2)(2) of Article II of the Constitution * * *; (2) 
the public interest in such agreements is insufficient to justify their 
publication, because (A) as of the date of enactment of the Foreign 
Relations Authorization Act, Fiscal Years 1994 and 1995, the agreements 
are no longer in force, (B) the agreements do not create private rights 
or duties, or establish standards intended to govern government action 
in the treatment of private individuals; (C) in view of the limited or 
specialized nature of the public interest in such agreements, such 
interest can adequately be satisfied by an alternative means; or (D) 
the public disclosure of the text of the agreement would, in the 
opinion of the President, be prejudicial to the national security of 
the United States; and (3) copies of such agreements * * * will be made 
available by the Department of State upon request.''
---------------------------------------------------------------------------
          (1) Bilateral agreements for the rescheduling of 
        intergovernmental debt payments;
          (2) Bilateral textile agreements concerning the 
        importation of products containing specified textile 
        fibers done under the Agricultural Act of 1956, as 
        amended;
          (3) Bilateral agreements between postal 
        administrations governing technical arrangements;
          (4) Bilateral agreements that apply to specified 
        military exercises;
          (5) Bilateral military personnel exchange agreements;
          (6) Bilateral judicial assistance agreements that 
        apply only to specified civil or criminal 
        investigations or prosecutions;
          (7) Bilateral mapping agreements;
          (8) Tariff and other schedules under the General 
        Agreement on Tariffs and Trade and under the Agreement 
        of the World Trade Organization;
          (9) Agreements that have been given a national 
        security classification pursuant to Executive Order No. 
        12958 or its successors; and (b) Agreements on the 
        subjects listed in paragraphs (a)(1) through (9) of 
        this section that had not been published as of February 
        26, 1996.

     While the laws cited above endeavored to ensure that 
Congress, and the public, would have access to all treaties and 
international agreements other than treaties, no provisions 
were made to ensure that the Congress would, in some way, have 
access to international agreements not in the public domain, 
that is, classified agreements. In addition, experience had 
demonstrated that U.S. Government agencies other than the State 
Department concluded agreements with other governments and the 
texts of those agreements usually were not sent to the State 
Department. These so-called agency-to-agency agreements were 
another category of agreement not easily accessible to the 
Congress.\11\
---------------------------------------------------------------------------
    \11\ See below, Impact and Assessments of the Case Act, for 
additional discussion of transmittal problems.
---------------------------------------------------------------------------
 The Bricker amendment and its legacy
     In the 1950s, a number of concerns were expressed by some 
in Congress and in other American forums, such as the American 
Bar Association, that: (1) rights and freedoms guaranteed by 
the Constitution might be altered by treaty; (2) that the 
President might ``legislate'' by international agreement or 
executive agreement without Senate approval; (3) that the 
Federal government might acquire through treaties the power to 
legislate in areas primarily within the jurisdiction of the 
States; and (4) that treaties might acquire Senate approval by 
a vote of only a small number of Members present. These 
concerns grew out of the foreign policy activism of the 
executive branch during and since World War II. Some Members 
were concerned over secret agreements such as those made by 
Presidents Franklin Roosevelt and Harry S. Truman with Stalin 
at Yalta and Potsdam in 1945, and the extent to which those and 
similar agreements might never be routinely shared with the 
Senate or with Congress. Others were concerned that active U.S. 
participation in the United Nations and U.N.-affiliated 
agencies might lead to U.S. adherence to treaties and 
agreements that would contravene or abrogate such U.S. 
constitutional principles as the reserved powers of the States 
and the fundamental freedoms guaranteed and protected in the 
bill of rights.
     Senator John W. Bricker in late 1951 introduced the first 
in a series of resolutions to amend the Constitution with 
respect to treaties and executive agreements. The Bricker 
amendment, as it was reported by the Senate Judiciary Committee 
on June 15, 1953, would have given Congress the power to 
regulate all executive and other agreements with any foreign 
power or international organization. Additionally, the 
amendment would have made any provision of a treaty invalid if 
it conflicted with the Constitution and an executive agreement 
effective in domestic law only through passage of enacting 
legislation. Debate on the Senate floor in January-February 
1954 centered around three versions of the Bricker legislation: 
the Judiciary Committee amendment; a series of amendments 
proposed by Republican leaders, including William F. Knowland 
and Homer Ferguson; and a substitute resolution sponsored by 
Senator Walter F. George. On February 26, Senator George's 
version was agreed to as a substitute for the Republican 
leadership amendment. The same day, the George version of the 
proposed constitutional amendment failed to pass the Senate 
with the required two-thirds majority by one vote.\12\
---------------------------------------------------------------------------
    \12\ For history and contextual discussion of the amendment, see 
the following: Tananbaum, Duane A. The Bricker Amendment Controversy: 
Its Origins and Eisenhower's Role. Diplomatic History, v. 9, Winter 
1985: 73-93; Grant, Philip A. The Bricker Amendment Controversy. 
Presidential Studies Quarterly, Summer 1985: 572-582; and Reichard, 
Gary W. Eisenhower and the Bricker Amendment. Prologue, Summer 1974: 
88-99. For legislative history discussion, see Congressional Quarterly 
Almanac for the year of interest.
---------------------------------------------------------------------------
     Support in the Congress for this type of limitation faded 
through the 87th Congress (1961-1962) and disappeared in the 
89th Congress (1965-1966).\13\ Senator Bricker introduced a 
version of his 1953 resolution in the 84th Congress (1955-1956) 
and the Subcommittee on Constitutional Amendments of the Senate 
Judiciary Committee held hearings in April and May 1955 that 
generated a 1016-page record.\14\ The full committee did not 
report the resolution until the following year, offering a 
substitute resolution, that was never considered on the Senate 
floor. Bricker's final proposal was introduced during the 85th 
Congress (1957-1958) and while hearings were held, the 
resolution was not reported from committee. After Bricker left 
the Senate, other Members of the Senate and House introduced 
similar resolutions in the 87th and 88th (House resolutions 
only) Congresses, but no action was taken on them.
---------------------------------------------------------------------------
    \13\ U.S. Library of Congress. Legislative Reference Service. The 
Bricker Amendment and Similar Proposals for Amending the Treaty 
Provisions of the Constitution. By Hugh P. Price, Dec. 2, 1964.
    \14\ U.S. Congress. Senate. Committee on the Judiciary. Treaties 
and Executive Agreements. Hearings before a subcommittee, 84th Cong., 
1st Sess. on S.J. Res. 1, April and May 1955. Washington, U.S. 
Government Printing Office, 1955.
---------------------------------------------------------------------------
    In 1985 one of the fundamental issues of the Bricker 
amendment debate was revived--the question of the supremacy of 
the Constitution over treaties. At the initiative largely of 
Senator Helms, the Senate included the following language as a 
reservation in its resolution of ratification on the U.N. 
Convention on the Prevention and Punishment of the Crime of 
Genocide:
        Nothing in this Convention requires or authorizes 
        legislation or other action by the United States of 
        America prohibited by the Constitution of the United 
        States as interpreted by the United States.

    In succeeding Congresses the Senate extended its use of the 
condition not only to other human rights treaties but also to 
those concerning mutual legal assistance and extradition. 
Beginning with the 105th Congress, the Senate began including 
the condition in the resolutions of ratification on virtually 
all treaties. As the result of compromises achieved in the late 
1980s and early 1990s, however, the condition is no longer in 
the form of a reservation (which requires notice to, and 
agreement by, the other party or parties to the treaty) but is 
now expressed as a proviso.\15\
---------------------------------------------------------------------------
    \15\ For a more detailed description of the evolution of this 
condition, see the section in Chapter VI on the ``Condition Regarding 
Supremacy of the Constitution.''
---------------------------------------------------------------------------
 National commitments concerns
     Congress became concerned in the late 1960s over the 
impact of U.S. involvement in other countries, such as Vietnam, 
and how the United States became heavily committed militarily 
in such countries. During August 1966 and February and March 
1967, the Preparedness Investigating Subcommittee of the Senate 
Committee on Armed Services held hearings on worldwide military 
commitments. These were followed in August and September 1967 
by hearings before the Senate Foreign Relations Committee on 
U.S. commitments to foreign powers, focusing on S. Res. 151, a 
resolution on national commitments.
     On January 23, 1969, the Foreign Relations Committee 
created a Subcommittee on U.S. Security Agreements and 
Commitments Abroad (known as the Symington Subcommittee after 
its chairman, Senator Stuart Symington) for the duration of the 
91st Congress. This subcommittee uncovered significant 
information previously unknown to Congress about various 
security arrangements with other countries that had been made 
by executive agreement. The information gathered by the 
subcommittee was instrumental in the passage of other 
legislation in the area of executive agreements and secret 
commitments.\16\
---------------------------------------------------------------------------
    \16\ Over a 22-month period, this subcommittee ``held 37 days of 
hearings, with 48 witnesses covering U.S. military forces, facilities 
and security programs in 13 countries, plus NATO.'' See U.S. Congress. 
Senate. Committee on Foreign Relations. Subcommittee on United States 
Security Agreements and Commitments Abroad. United States Security 
Agreements and Commitments Abroad, Hearings, 91st Congress. Washington, 
U.S. Government Printing Office, 1970. 2 v., 2442 p. (Issued initially 
in 11 different parts; final publication in 2 volumes)
---------------------------------------------------------------------------
     Meanwhile, on June 25, 1969, the Senate passed a national 
commitments resolution, S. Res. 85, expressing its sense that a 
U.S. national commitment should result ``only from affirmative 
action taken by the executive and legislative branches of the 
United States Government by means of a treaty, statute, or 
concurrent resolution of both houses of Congress specifically 
providing for such commitment.'' The resolution was not legally 
binding on the President since it was not legislation, as was 
the War Powers Resolution. As a statement of Senate policy, 
however, the resolution established a guidepost that might be 
used in tracking future presidential actions.
     In December 1970, the Symington Subcommittee concluded its 
lengthy investigations with a report, ``Security Agreements and 
Commitments Abroad,'' that included a number of observations 
and recommendations over the use or failure to use treaties and 
executive agreements in the making of national commitments. The 
subcommittee recommended that appropriate congressional 
committees
         request and receive full information on all 
        understandings and agreements of a security nature 
        which are undertaken between the United States and 
        foreign countries or their leaders. Where appropriate, 
        the proper committees should, in executive session, be 
        informed on the progress of negotiations to this 
        end.\17\
---------------------------------------------------------------------------
    \17\ U.S. Congress. Senate. Committee on Foreign Relations. 
Subcommittee on United States Security Agreements and Commitments 
Abroad. Security Agreements and Commitments Abroad; report. Washington, 
U.S. Government Printing Office, 1970. (91st Cong., 2d Sess. Committee 
Print.) p. 28.

     Congressional concerns over U.S. national commitments did 
not diminish in the 1990s. In November 1990, Congress required 
the President annually to report to the House and Senate Armed 
Services Committees and to the House Foreign Affairs and Senate 
Foreign Relations Committees on U.S. security arrangements 
with, and commitments to, other nations.\18\ The fundamental 
concern of this Senate-initiated provision was with the 
``ability of the United States to meet worldwide commitments in 
the future,'' taking into account the ``sizing down'' of 
defense budgets and reduced force structure. The Senate Armed 
Services Committee believed it appropriate that a review be 
done to determine whether or not these commitments were ``still 
necessary in the changing international environment.'' \19\ 
This report was transmitted to the required committees in 1991 
and 1992.
---------------------------------------------------------------------------
    \18\ National Defense Authorization Act for Fiscal Year 1991, 
Section 1457, Public Law 101-510, approved November 5, 1990. The study 
shall include, (1) A description of (A) each security arrangement with, 
or commitment to, other nations, whether based upon (i) a formal 
document (including a mutual defense treaty, a pre-positioning 
arrangement or agreement, or an access agreement), or (ii) an expressed 
policy; and (B) the historical origins of each such arrangement or 
commitment. (2) An evaluation of the ability of the United States to 
meet its commitments based on the projected reductions in the defense 
structure of the United States. (3) A plan for meeting each of those 
commitments with the force structure projected for the future. (4) An 
assessment of the need to continue, modify, or discontinue each of 
those arrangements and commitments in view of the changing 
international security situation. See Chapter XI, for discussion of the 
1992 report.
    \19\ Senate Report 101-384, p. 238 (101st Cong., 2d Sess.).
---------------------------------------------------------------------------
 Military base agreements (Spain, Portugal, Bahrain)
     Another recommendation of the Symington Subcommittee urged 
that Congress ``take a realistic look at the authority of the 
President to station troops abroad and establish bases in 
foreign countries.'' \20\ Referring to a practice of ``creeping 
commitment,'' the subcommittee observed that
---------------------------------------------------------------------------
    \20\ Ibid., p. 28.
---------------------------------------------------------------------------
         Overseas bases, the presence of elements of United 
        States armed forces, joint planning, joint exercises, 
        or extensive military assistance programs represent to 
        host governments more valid assurances of United States 
        commitment than any treaty or executive agreement.\21\
---------------------------------------------------------------------------
    \21\ Ibid., p. 20.

     This issue came to the fore in early August 1970, when the 
Nixon Administration concluded an executive agreement with 
Spain extending the original 1953 agreement governing American 
use of bases in Spain (the agreement had already been extended 
in 1963). A number of Senators expressed displeasure that the 
agreement was not being negotiated as a treaty. Senator J. 
William Fulbright, chairman of the Senate Foreign Relations 
Committee, argued that ``This Spanish agreement is a classic 
example of how to enlarge the commitments of this country by 
secret agreements and executive agreements without the approval 
of Congress.'' \22\ On December 11, 1970, the Senate agreed to 
S. Res. 469 (91st Congress), expressing the sense of the Senate 
that nothing in the executive agreement with Spain should be 
deemed to be a national commitment by the United States. In 
1976, a Treaty of Friendship and Cooperation with Spain that 
included provisions on use of the bases was finally concluded 
as a treaty and approved by the Senate. In 1981, the Senate 
Foreign Relations Committee agreed that future base agreements 
with Spain could be concluded as executive agreements after 
Spain became a member of NATO, a step finalized in May 1982.
---------------------------------------------------------------------------
    \22\ Fulbright, James W. Spanish Bases. Congressional Record vol. 
129, part 20, July 31, 1970: 28791.
---------------------------------------------------------------------------
     In December 1971, the Nixon Administration concluded 
executive agreements with Portugal and Bahrain, providing for 
continued stationing of U.S. military personnel at a base in 
the Azores and continued use of support facilities in Bahrain. 
In response to this action, several members of the Senate 
Foreign Relations Committee introduced S. Res. 214, that any 
agreement with Portugal ``should be submitted as a treaty to 
the Senate for advice and consent.'' In January 1972, Senator 
Clifford Case introduced an amendment to the resolution, to the 
effect that the agreement with Bahrain should also be submitted 
to the Senate as a treaty. In reporting favorably on S. Res. 
214, the committee recalled that ``no lesson'' had been learned 
from the experience with the Spanish base agreement. These two 
agreements, the committee report continued, raised ``important 
foreign policy questions'' and the ``submission of these 
agreements as treaties * * * is the best and most appropriate 
way'' of scrutinizing these questions.\23\ As passed by the 92d 
Congress in March 1972, S. Res. 214 stated that ``any agreement 
with Portugal or Bahrain for military bases or foreign 
assistance should be submitted as a treaty to the Senate for 
advice and consent.'' Neither of these resolutions had the 
force of law. Over the following 2 years, unsuccessful attempts 
were made in Congress to tie appropriation of funds to 
implement these agreements to their being submitted as 
treaties.
---------------------------------------------------------------------------
    \23\ U.S. Congress. Senate. Committee on Foreign Relations. 
Agreements with Portugal and Bahrain. Report to Accompany S. Res. 214. 
Washington, U.S. Government Printing Office, 1972. (92d Cong., 2d Sess. 
S. Rept. No. 92-632) pp. 5, 8.
---------------------------------------------------------------------------
 Separation of Powers Subcommittee approach
     In spring 1972, a few months before adoption of the Case 
Act, another series of legislative proposals became the focus 
of hearings and legislative debate. The overall thrust of the 
proposals, spearheaded by Senator Sam Ervin, was a requirement 
that all international agreements other than treaties be 
transmitted to Congress 60 days before their entry into force. 
Congress would have the opportunity to adopt a resolution of 
disapproval before the expiration of the 60-day waiting period. 
In the absence of a disapproval resolution, the agreements 
would enter into force at the end of the 60-day period. 
Ultimately, none of these proposals was enacted.
     The original legislation (S. 3475, 92d Congress) was 
introduced in April 1972, with 5 days of hearings concluding on 
May 19, 1972. Senator Ervin, who chaired the Separation of 
Powers Subcommittee of the Senate Judiciary Committee, 
reintroduced the legislation in 1973 (S. 1472, 93d Congress) 
and, in 1974, in S. 3830 (93d Congress), added a section that, 
in effect, removed from coverage most executive agreements. 
Section 4 of S. 3830 provided that executive agreements 
negotiated pursuant to a provision of the Constitution or to 
prior authority in treaty or law would not come under the 
procedures set forth in S. 3830. In November 1974, the Senate 
passed S. 3830, which was not considered in the House. While 
Senator Ervin's service in the Senate ended in 1974, his 
legislative proposal was reintroduced in 1975, with the 
Separation of Powers Subcommittee holding 4 days of hearings in 
May and July 1975 on S. 632 and S. 1251 (94th Congress). The 
House International Relations Committee (the House Foreign 
Affairs Committee), in 1976, held 6 days of hearings on similar 
legislative proposals (H.R. 4438). No further legislative 
action, beyond the hearings, was taken on any of these 
proposals.\24\
---------------------------------------------------------------------------
    \24\ More extensive discussion of the legislative proposals with 
citations to hearings and reports may be found in the following 
publications: U.S. Congress. House. Committee on International 
Relations. Congress and Foreign Policy--1975. Washington, U.S. 
Government Printing Office, 1976. See pp. 45-48. Congressional 
Oversight of Executive Agreements; U.S. Congress. House. Committee on 
International Relations. Congress and Foreign Policy--1976. Washington, 
U.S. Government Printing Office, 1977. See pp. 11-18. Executive 
Agreements and Treaties.
---------------------------------------------------------------------------

                   intent and content of the case act

     In response to the secret agreements uncovered during the 
Symington Subcommittee hearings, Senator Clifford P. Case in 
December 1970, introduced the legislation that became the Case-
Zablocki Act. Senator Case recalled that an earlier version of 
the legislation had been proposed in 1954, 1955, and 1957 by 
Senators Homer Ferguson and William F. Knowland as an 
alternative to the Bricker amendment. The earlier bills, which 
called for submission of all executive agreements to the Senate 
within 60 days after entry into force, were passed by the 
Senate in the 84th and 85th Congresses but not acted on by the 
House.\25\ Senator Case revised the Ferguson-Knowland bills to 
include the House. He reintroduced the legislation in February 
1971 as S. 596, and it successfully proceeded through the 
legislative process to become Public Law 92-403.\26\ House 
companion bills had been introduced in April 1972 by 
Representatives Clement Zablocki and Charles Whalen.
---------------------------------------------------------------------------
    \25\ In the 83d Congress, S. 3067 was introduced in March 1954 and 
reported to the Senate in August 1954, but not passed by the Senate. In 
the 84th Congress, S. 147 was introduced in January 1955, reported to 
the Senate in July 1956, and passed by the Senate in July 1956. In the 
85th Congress, S. 603 was introduced in January 1957, reported to the 
Senate in June 1957, and passed by the Senate in June 1957.
    \26\ Legislative history of Public Law 92-403 follows: Feb. 4, 
1971: S.596 introduced. Oct. 20 and 21, 1971: Public hearings, Senate 
Foreign Relations Committee. Printed. Dec. 7, 1971: Ordered reported. 
Jan. 19, 1972: Reported to the Senate, S. Rept. 92-591. Feb. 16, 1972: 
Passed Senate, 81-0. Feb. 17, 1972: Referred to House Foreign Affairs 
Committee. June 19, 1972: Public hearings by Subcommittee on National 
Security Policy and Scientific Developments. Printed. Aug. 3, 1972: 
Passed full House committee, ordered reported, and reported to the 
House, H. Rept. 92-1301. Aug. 14, 1972: Passed House. Voice vote. Aug. 
22, 1972: Approved. Public Law 92-403.
---------------------------------------------------------------------------
     The Case Act requires the executive branch to keep 
Congress informed of all international agreements concluded by 
the United States, including those of a sensitive nature. The 
Senate Foreign Relations Committee described the bill as ``an 
effective means of dealing with the prior question of secrecy 
and of asserting the obligation of the executive to report its 
foreign commitments to Congress.'' \27\ The House Foreign 
Affairs Committee described S. 596 as ``a step toward restoring 
a proper working relationship between the Congress and the 
executive branch in the area of foreign affairs. By 
establishing in law a formal procedure for the transmittal to 
Congress of all executive agreements, the bill would eliminate 
one potential source of friction.'' \28\
---------------------------------------------------------------------------
    \27\ U.S. Congress. Senate. Committee on Foreign Relations. 
Transmittal of Executive Agreements to Congress. Report to accompany S. 
596. S. Rept. 92-591, 92d Cong., 2d Sess. Washington, U.S. Government 
Printing Office, 1972, p. 5.
    \28\ U.S. Congress. House. Committee on Foreign Affairs. 
Transmittal of Executive Agreements to Congress. Report to accompany S. 
596. H. Rept. 92-1301, 92d Cong., 2d Sess. Washington, U.S. Government 
Printing Office, 1972, p. 2.
---------------------------------------------------------------------------
     The act was not retroactive and required transmittal only 
of agreements made after the legislation took effect. The 
Senate report noted that the committee expected the executive 
branch to make all such previously enacted agreements available 
to the Congress or its foreign affairs committees at their 
request and in accordance with the procedures defined in the 
bill.
     As originally enacted, the law had two provisions. First, 
it required the Secretary of State to transmit to Congress the 
text of any international agreement other than a treaty as soon 
as practicable but no later than 60 days after it entered into 
force. Second, those agreements which the President determined 
should be classified would be transmitted not to Congress as a 
whole, but to the House Foreign Affairs Committee and the 
Senate Foreign Relations Committee under an injunction of 
secrecy to be removed only upon notice from the President.

                        implementation, 1972-1976

     Passage of the Case Act established the basic obligation 
for the transmittal by the Secretary of State to Congress of 
any international agreement other than a treaty within 60 days 
after its entry into force. Implementation of this obligation 
started immediately and satisfactorily. However, Senator Case, 
concerned over Administration inferences during Senate 
consideration of the legislation that ``certain kinds of 
agreements'' might not be transmitted under the Act, sought a 
clarification of this point from the State Department. In 
response to the committee's request for ``a written statement 
defining executive agreements and listing specifically the 
kinds of agreements that will be submitted and whether there 
are any categories of agreements that the Department believes 
are not covered by the Case Act,'' the State Department's 
Acting Legal Adviser, Charles N. Brower, submitted the 
following:
          The expression ``executive agreement'' is understood 
        by the Department of State to include any international 
        agreement brought into force with respect to the United 
        States without the advice and consent of the Senate 
        under the provisions of clause 2 of Section 2, Article 
        II of the Constitution of the United States. The words 
        ``all international agreements other than treaties to 
        which the United States is a party'' in the act of 
        September 23, 1950 (paragraph 2, 64 Stat. 980; 1 U.S.C. 
        112a) and the words, ``any international agreement, 
        other than a treaty, to which the United States is a 
        party'' in the Case Act (86 Stat. 619; U.S.C. 112b) are 
        considered as including all international agreements 
        covered by the expression ``executive agreement.''
          Accordingly, the Department of State considers the 
        Case Act as covering ``all international agreements 
        other than treaties'' specified in the act of September 
        23, 1950, and required by that act to be published in 
        the new compilation entitled ``Treaties and Other 
        International Agreements of the United States: (UST),'' 
        plus comparable agreements that are classified in the 
        interest of national security and not published in that 
        compilation.\29\
---------------------------------------------------------------------------
    \29\ Case, Clifford P. Cooperation of Department of State under 
Public Law 92-403. Congressional Record, vol. 119, part 16, June 18, 
1973: 1974.

 On the question of the kinds of agreements that would be 
submitted, the Legal Adviser reported that the ``Department 
considers that the Case Act is intended to include every 
international agreement, other than a treaty, brought into 
force with respect to the United States after August 22, 1972, 
regardless of its form, name or designation, or subject 
matter.'' \30\
---------------------------------------------------------------------------
    \30\ Ibid.
---------------------------------------------------------------------------
     Senator Case noted his agreement with the ``State 
Department's interpretation'' and for the record listed the 
following as among the types of agreements the committees would 
regularly receive:
          Intelligence agreements;
          Nuclear basing agreements;
          Presidential executive agreements;
          Intergovernmental agreements between Cabinet or 
        independent agencies in the United States and their 
        foreign counterparts;
          Nuclear technology sharing agreements;
          International trade agreements;
          Military and economic assistance agreements;
          Agreements with foreign intelligence agencies; and
          Contingency agreements with countries with which the 
        United States does not have security commitments by 
        treaty.\31\
---------------------------------------------------------------------------
    \31\ Ibid.

Senator Case added that this list should not be considered all 
inclusive and did not preclude Congress receiving other types 
of agreements.
     Finally, the Department of State also agreed to provide to 
Congress certain material requested by the Chairman of the 
Foreign Relations Committee, Senator William Fulbright, 
concerning classified agreements. Senator Fulbright had 
requested that ``each classified executive agreement 
transmitted to the committee be accompanied by an explanation 
of the agreement, background information on its negotiations, 
and a statement of its effect.'' The Congressional Relations 
office of the Department of State indicated its willingness to 
``provide the information * * * requested,'' concluding ``we 
are initiating immediately the steps necessary to insure that 
classified agreements transmitted * * * under the Act will be 
accompanied by appropriate background information.'' \32\
---------------------------------------------------------------------------
    \32\ Ibid.
---------------------------------------------------------------------------
     Earlier in 1973, the General Accounting Office (GAO) found 
that executive branch agencies had concluded U.S. executive 
agreements and arrangements to provide substantial assistance 
to seven countries that contributed forces to Vietnam without 
notification of these agreements to Congress. In view of the 
Case Act, the GAO recommended that the Secretary of State,
          --Establish procedures to require that all agreements 
        be subject to his approval. This would include those 
        subordinate to or designed to implement basic 
        government-to-government agreements which commit the 
        United States to specific performance requiring 
        expenditure of substantial amounts of money.
          --Require a central repository to be established 
        within the State Department for all such international 
        agreements, arrangements, and commitments, similar to 
        the one now in existence for treaties.
          --Provide annually to the appropriate committees of 
        the Congress a list and description of all such 
        agreements, together with estimates of the future 
        years' costs that each agreement involves.\33\
---------------------------------------------------------------------------
    \33\ U.S. General Accounting Office. U.S. Agreements with and 
Assistance to Free World Forces in Southeast Asia Show Need for 
Improved Reporting to the Congress. Report of the Comptroller General. 
April 24, 1973. Washington, 1973. 5 p. (B-159451) See pp. 1, 4-5. An 
unclassified digest furnished in lieu of a report containing classified 
security information.

 This report highlighted the need to ensure that the State 
Department had copies of all executive agreements concluded 
with other countries by various agencies of the government. In 
response, on September 6, 1973, Acting Secretary of State 
Kenneth Rush sent a letter to all executive branch departments 
and agencies concerning the State Department's obligation under 
the Case Act to transmit all agreements to the Congress. In 
part, the letter read,
         it seems clear that texts should be transmitted to the 
        Department of State of [all subordinate and 
        implementing agreements involving substantial amounts 
        of U.S. funds or other tangible assistance] and of any 
        agreements of political significance, any that involve 
        a substantial grant of funds, any involving loans by 
        the United States or credits payable to the United 
        States, any that constitute a commitment of funds that 
        extends beyond a fiscal year or would be a basis for 
        requesting new appropriations, and any that involve 
        continuing or substantial cooperation in the conduct of 
        a particular program or activity, such as scientific, 
        technical, or other cooperation, including the exchange 
        or receipt of information and its treatment. In 
        general, the instruments transmitted to the Congress 
        pursuant to the Case Act, and those published (other 
        than those classified under E.O. 11652), should reflect 
        the full extent of obligations undertaken by the United 
        States and of rights to which it is entitled pursuant 
        to instruments executed on its half.
          The fact that an agency reports fully on its 
        activities to a given Committee or Committees of 
        Congress, including a discussion of agreements it has 
        entered into, does not exempt the agreements concluded 
        by such agency from transmission to the Congress by the 
        Department of State under the Case Act.\34\
---------------------------------------------------------------------------
    \34\ Rovine, Arthur W. Digest of United States Practice in 
International Law, 1973. Washington, D.C., U.S. Government Printing 
Office, 1974. pp. 187-188. Text may be seen in its entirety in U.S. 
General Accounting Office. U.S. Agreements with the Republic of Korea; 
Departments of State and Defense. Report of the Comptroller General of 
the United States. February 20, 1976. Washington, 1976. See Appendix 
III, pp. 22-24.

     In August 1973, the Department of State initiated plans to 
revise its Circular 175 procedures, issued in the Foreign 
Affairs Manual, an internal instruction for State Department 
personnel. The proposed revision, incorporating changes 
reflecting the Case Act obligations, among other things, was 
published in the Federal Register because of ``the public 
interest in the manner in which treaties and other 
international agreements are entered into by the United 
States.'' \35\
---------------------------------------------------------------------------
    \35\ Treaties and Other International Agreements; Notice of 
Proposed Rulemaking. Federal Register, v. 38, no. 157, August 15, 1973: 
22084f.
---------------------------------------------------------------------------
     Congressional concerns over gaps in the transmittal of 
agreements and lack of clarity over what constituted an 
executive agreement persisted in 1974 and 1975. In April 1975, 
Senator James Abourezk, chairman of the Senate Judiciary 
Committee's Subcommittee on Separation of Powers, asked the 
General Accounting Office to explore whether all agreements 
with Korea had been transmitted under the Case Act and whether 
there were any oral agreements that had not been reduced to 
writing. In February 1976, the GAO responded, identifying 34 
agreements made since 1972 between the United States and South 
Korea which had not been transmitted to Congress by the State 
Department since they had never been sent to the State 
Department, as required by the Rush letter.\36\ In response, 
the Department of State circulated to ALL DIPLOMATIC POSTS an 
airgram dated March 9, 1976, outlining ``Case Act Procedures 
and Department of State Criteria for Deciding What Constitutes 
an International Agreement.'' A copy of the Case Act and the 
Rush letter accompanied the Airgram. A similar letter, under 
the same title, was sent to Key Department Personnel on March 
12, 1976.
---------------------------------------------------------------------------
    \36\ U.S. General Accounting Office. U.S. Agreements with the 
Republic of Korea, Departments of State and Defense. Report of the 
Comptroller General of the United States. February 20, 1976. 
Washington, 1976. (ID-76-20; B-110058)
---------------------------------------------------------------------------
     One of the concerns expressed at the time the Case Act was 
enacted was the quantity of agreements to be transmitted. 
Initial discussions between the State Department's Legal 
Adviser and the Senate Foreign Relations and House Foreign 
Affairs Committees dwelt on assurances that all agreements 
other than treaties would be transmitted. In 1976, the focus of 
attention turned to consultations on agreements that might not 
be transmitted. The proliferation of transmitted agreements was 
especially large for those negotiated by the Agency for 
International Development (AID). According to the Legal 
Adviser, many of the agreements were for relatively small 
amounts of money and AID already reported regularly to Congress 
on its activities and programs. In a letter to Foreign 
Relations Committee Chairman John Sparkman dated May 27, 1976, 
Legal Adviser Monroe Leigh wrote:
          Subject to your concurrence and that of Chairman 
        Morgan of the House Committee on International 
        Relations, it has been agreed that the Department of 
        State will submit to the Congress pursuant to the Case 
        Act any international agreement or amendment thereto 
        entered into by the Agency for International 
        Development with a foreign government or international 
        organization which provides that the United States will 
        contribute at least $1 million in support of the 
        project or projects set forth in the agreement.
          This $1 million limitation will be subject to three 
        exceptions. First, it is understood that all AID 
        agreements with foreign governments or international 
        organizations which have as a principal purpose the 
        establishment of an AID program will be submitted * * 
        *.
          Second, it is agreed that any other AID agreement or 
        amendment that is significant for reasons other than 
        level of funding will be submitted to the Congress 
        pursuant to the Case Act, even if it provides for less 
        than $1 million * * *.
          Finally, it is agreed that any AID agreement with a 
        foreign country or international organization, without 
        regard to dollar amount, entered into pursuant to 
        Section 607 of the Foreign Assistance Act of 1961, as 
        amended, will be submitted pursuant to the Case Act * * 
        *.\37\
---------------------------------------------------------------------------
    \37\ Letter from Monroe Leigh, Legal Adviser, Department of State 
to Senator John J. Sparkman, Chairman, Senate Foreign Relations 
Committee. Dated May 27, 1976. 2 p. Senate Foreign Relations Committee 
files. Section 607 of the Foreign Assistance Act authorizes the 
President to furnish services and commodities on an advance-of-funds or 
reimbursable basis to countries, international organizations, the 
American Red Cross, and voluntary nonprofit relief agencies.

     The amount was subsequently raised from $1 million to $25 
million.

                  amendments of the case act, 1977-1978

     After nearly 5 years' experience with the Case Act, some 
limitations of the original Act became clear. The Case Act was 
amended in both 1977 and 1978 to address these limitations. 
During 1977, Congress modified the Case Act to require that
         Any department or agency of the U.S. Government which 
        enters into any international agreement on behalf of 
        the United States shall transmit to the Department of 
        State the text of such agreement not later than 20 days 
        after such agreement has been signed.\38\
---------------------------------------------------------------------------
    \38\ Section 5, Public Law 95-45, 91 Stat. 244, approved June 15, 
1977. This amendment was recommended by the Senate Foreign Relations 
Committee in its report to the Senate on H.R. 5040, authorizing 
additional appropriations for the Department of State for fiscal year 
1977 (S. Rept. 95-99). It was accepted by the Senate on May 11, 1977, 
and by the House on May 26, 1977.

 The amendment was intended to ensure, by law, that the 
Department of State would receive agreements made by other 
agencies in a timely manner and thus be able to transmit them 
to the Congress within the limits of the Case Act. A 1976 
General Accounting Office report had identified the 
Department's unsuccessful efforts in acquiring the texts of 
agreements concluded by other agencies as a major problem.
    In 1978, Congress further amended the Case Act. A major 
intent of those amendments was to consolidate, within the 
executive branch, the role of the State Department as the 
central coordinator for negotiations with other countries and 
international organizations and to set forth in U.S. statute 
the obligations of the executive branch relative to 
international agreements other than treaties. They were added 
in the Foreign Relations Authorization Act, Fiscal Year 
1979.\39\ The first amendment included ``any oral international 
agreement'' within the coverage of the Act, stipulating that 
oral agreements must be ``reduced to writing.'' The Foreign 
Relations Committee sought to eliminate ``any possible 
incentive for entering into certain agreements orally rather 
than in writing'' and specifically to ``require the 
transmission of intelligence sharing and intelligence liaison 
agreements, many of which are oral.'' \40\
---------------------------------------------------------------------------
    \39\ Section 708, Public Law 95-426, 92 Stat. 993, approved October 
7, 1978.
    \40\ U.S. Congress. Senate. Committee on Foreign Relations. Foreign 
Relations Authorization Act, Fiscal Year 1979. Report on S. 3076. 
Washington, U.S. Government Printing Office, 1978. p. 45. (95th Cong., 
2d Sess. S. Rept. 95-842).
---------------------------------------------------------------------------
     The rest of the amendments aimed at the problem of 
agreements negotiated outside of the State Department although 
they apply equally throughout the government. The second 
amendment required that the President send to Congress annually 
\41\ a report on all agreements which ``during the preceding 
year'' were transmitted to Congress after the 60-day period set 
forth in the Act. This ``late agreements report'' was to 
describe ``fully and completely the reasons for the late 
transmittal.'' The committee believed that a report at the 
presidential level would bring such noncompliance with the Act 
by whatever agency to the President's attention. This report 
has been transmitted in typescript form to the Congress in late 
February or early March annually. In 1985 and 1986, the 
transmittals were in late March and early April, respectively. 
The report covering 1981 was published as a House Document, 
thereby increasing the availability of the information.\42\ 
This was a one-time occurrence.
---------------------------------------------------------------------------
    \41\ The actual language is ``Not later than March 1, 1979, and at 
yearly intervals thereafter.''
    \42\ The citation for the 1981 report is 97th Cong., 2d Sess., 
House Document No. 97-148. 12 p.
---------------------------------------------------------------------------
     The third amendment required that no agreement be signed 
or concluded by any agency in the executive branch without 
prior consultation with the Secretary of State. The purpose of 
this amendment was to ensure that the Secretary of State was 
aware of agreements or classes of agreements being made by 
other agencies of the government and to maintain the 
Secretary's role as coordinator of negotiations between the 
United States and other countries. It also sought to ensure 
that the Congress would be consulted under the State 
Department's Circular 175 procedures as to whether an agreement 
should be an executive agreement or a treaty. The fourth 
amendment specified the Secretary of State as the U.S. 
Government official with the authority within the executive 
branch to determine whether an arrangement with a government 
constitutes an international agreement under the Act.
     The final amendment required the President to develop 
rules and regulations implementing the Case Act and make them 
applicable to all agencies. This was to ensure that the Case 
Act was applied to the agreements made by any U.S. agencies. 
These regulations, ``Coordination and Reporting of 
International Agreements,'' were published in final form in the 
Federal Register on July 13, 1981, and apply to all 
agencies.\43\ They outline the procedures to be followed by all 
agencies in consulting with the Secretary of State before 
concluding an international agreement and the procedures to be 
followed by the State Department in transmitting executive 
agreements to Congress.
---------------------------------------------------------------------------
    \43\ For text, see Appendix 3. U.S. Department of State. Regulation 
108.809. 22 CFR, Part 181. Coordination and Reporting of International 
Agreements. Final Rule. Federal Register, v. 46, no. 133, July 13, 
1981: 35917-35921.
---------------------------------------------------------------------------
     The regulation specifies the following criteria for 
determining whether an agreement constitutes an executive 
agreement that should be reported under the Case Act:
          1. The parties must be states, the domestic agencies 
        of a state, or an international organization and must 
        intend to be legally bound by the agreement;
          2. The agreement must be significant, a determination 
        based, in part, on application of four additional 
        elements, namely, that the agreement: have political 
        significance, involve substantial grants of funds or 
        credits, constitute a substantial commitment of funds 
        extending beyond a fiscal year, and involve continuing 
        and/or substantial cooperation in the conduct of a 
        program or activity;
          3. The agreement must be specific enough in the 
        undertaking required of the parties as to be legally 
        enforceable;
          4. There must be at least two parties;
          5. The agreement normally follows the customary form 
        for international agreements.

 These same criteria apply to agency-level agreements, 
implementing agreements, extensions and modifications of 
agreements, and oral agreements.
     The regulations also set forth the procedures for 
consultation with the Department for a determination of the 
form of the agreement (whether treaty or executive agreement); 
procedures for ensuring that an agreement or class of 
agreements is consistent with U.S. foreign policy objectives; 
adherence to the 20-day rule for concluded agreements; and 
materials required to be transmitted to the Congress.
     According to Department of State officials, the process of 
gathering the background information desired by Congress and 
supplying an official copy of the agreement often takes the 
full 60 days specified by the Case Act.\44\
---------------------------------------------------------------------------
    \44\ Information from Office of Assistant Legal Adviser for Treaty 
Affairs, Department of State, February 1993.
---------------------------------------------------------------------------
     In 1994, Congress amended the publication section of 1 
U.S.C. 112a, authorizing the State Department not to publish 
certain categories of agreements after February 26, 1996. See 
supra, this chapter, first section.

              committee procedures under the case act \45\
---------------------------------------------------------------------------

    \45\ Information in this section was verified in interviews with 
committee staff in January 2001.
---------------------------------------------------------------------------
     Since the passage of the Case Act, the Senate Foreign 
Relations and House International Relations Committees have 
developed procedures for consulting, receiving, and using the 
executive agreements transmitted to Congress under the Case 
Act.\46\ The letter of transmittal to the President of the 
Senate and the Speaker of the House is noted in the 
Congressional Record. The agreements are referred to the Senate 
Foreign Relations Committee and the House International 
Relations Committee. Classified executive agreements are sent 
directly to the two committees.
---------------------------------------------------------------------------
    \46\ After 1994, the House Committee on Foreign Affairs was renamed 
the House Committee on International Relations.
---------------------------------------------------------------------------
 Senate Foreign Relations Committee procedures
     After being transmitted to the President of the Senate, 
the unclassified agreements are informally referred to the 
Parliamentarian for a referral determination and then to the 
``morning clerk'' who gives the transmittal an executive 
communication number. The package of agreements and materials 
is formally referred to the Senate Committee on Foreign 
Relations and cited in the Congressional Record the next day. 
The transmission is listed in the committee calendar, with the 
Executive Communication (EC) number cited. Each agreement is 
also listed, identifying the country and subject, along with 
the EC number, in a Weekly Summary of Committee Activity that 
is circulated to committee members and staff and is a main 
communication tool. The committee's chief counsel reviews each 
agreement for completeness and also serves an alert function 
for members and staff as necessary. The committee information 
system office (1) maintains a data bank that facilitates 
retrieval of the agreements by country, subject matter, or date 
and (2) provides for the microfilming of each unclassified 
agreement. At the end of each Congress, the agreements are sent 
to the committee's official records in the National Archives.
     Classified agreements are sent directly to the committee 
and stored with other classified materials. A chronological 
listing of all classified agreements received is maintained and 
appropriate committee staff are notified of their receipt for 
possible consultation with Members. The Weekly Summary of 
Committee Activities also includes a notification that 
classified agreements have been received; information on the 
country and subject matter is not included in this listing. The 
chief counsel also reviews each classified agreement for 
completeness of transmission and the necessity for briefings 
for Members and staff. The classified agreements are not 
microfilmed but are kept in the committee's custody for a 
longer period of time.
 House International Relations Committee procedures
     In the House International Relations Committee, all 
unclassified executive agreements transmitted to the Speaker 
and referred to the committee are listed separately in the 
committee calendar by country, with the subject of the 
agreements and its executive communication number. Appropriate 
staff are notified of the receipt of specific agreements, the 
texts of which are maintained in committee files for a single 
Congress. Thereafter, the agreements are sent to the 
committee's records at the National Archives.
     Classified agreements are received directly by the 
committee. A brief notice of their receipt is included in the 
committee's Survey of Activities which is circulated weekly to 
all committee staff and members. A memorandum of notification 
that such agreements have been received is sent to appropriate 
committee staff. Classified executive agreements are recorded 
in a log with other executive branch reports and are 
retrievable through the log. Classified agreements can be sent 
to the committee's records at the National Archives at the end 
of each Congress.

                  impact and assessment of the case act

     The Case Act has been helpful in apprising Congress of 
executive agreements as defined by the Act. Staff members of 
both the Foreign Relations and the International Relations 
Committees indicate their satisfaction that all agreements the 
State Department knows of are transmitted, although 
notifications to the ``Treaty Office'' in the State Department 
of agreements signed may still be unpredictable (see below on 
late agreements). Implementation of the Case Act has 
contributed to improved relations between Congress and the 
executive branch in the area of executive agreements. In 
addition, the Case Act has helped the Department of State gain 
control of the agreements negotiated by other agencies.
     Problems still remain with ensuring that Congress is 
informed and consulted on all binding international agreements. 
Some problems are due to difficulties in Congress in handling 
the executive transmittals. Others are based on the continuing 
lack of clear and agreed definitions of executive agreements.
 Number of agreements transmitted
     The language of the Case Act is general enough to 
encompass a great variety and number of executive agreements. 
In an effort to comply with the act, the Department of State 
initially interpreted it broadly and sent to the Congress a 
large number of agreements. The first and immediate impact of 
the Act, particularly as more agreements negotiated by other 
executive branch agencies were sent to the State Department's 
treaty office, was a dramatic increase in the number of 
executive agreements reported as concluded on behalf of the 
United States. See Table II-2, in Chapter II, especially the 
figures for 1976-1978.\47\ This phenomenon brought to both the 
committees and the State Department the problems of processing 
such a large number of agreements. Consultations among all 
involved resulted in a decision that certain agreements made by 
the Agency for International Development would not be 
transmitted (see discussion above).
---------------------------------------------------------------------------
    \47\ For comprehensive data on the conclusion of treaties and 
executive agreements, see Chapter II above.
---------------------------------------------------------------------------
     An associated problem for the State Department was 
ensuring that the agreements were published in a timely manner 
as part of its TIAS series. Financial and personnel shortages 
have delayed the publishing of the TIAS, and also of UST, by 
the Department of State by at least 10 years.
     The numbers of agreements transmitted remained high, at 
least through 1990. The calendar year 1991 and 1992 figures of 
280 and 296, respectively, probably reflect the 1990 
redefinition and exclusion of 60 to 80 Public Law 480, Title I 
agreements concluded annually (see below, under Insufficient 
Transmittal of Agreements to Congress). During the rest of the 
1990s, the number of agreements gradually fell until in 1998 
and 1999, fewer than 200 agreements were transmitted annually. 
See Table X-1.

 Table X-1.--Transmittal of Executive Agreements to Congress, 1978-1999
------------------------------------------------------------------------
                         Total Late    Late Agreements, Agency of Origin
                     ---------------------------------------------------
  Year      Total                            State        Other Agencies
Covered  Transmitted                  ----------------------------------
                      Number  Percent              From
                                       Total \1\  Posts       Total
------------------------------------------------------------------------
1978          520        132    25.4   45            ?   87 (includes 3
                                        (include          classified)
                                        s 1
                                        classifi
                                        ed)
1979          355         46      13   19            7   27 (includes 2
                                        (include          classified:
                                        s 1               DOD)
                                        classifi
                                        ed)
1980          320         43    13.4   24            9   19 (includes 1
                                        (include          classified:
                                        s 2               DOD)
                                        classifi
                                        ed)
1981          368         99      27   69           19   30 (includes 1
                                        (include          classified:
                                        s 2               DOD)
                                        classifi
                                        ed)
1982          372         84      23   44           13   40 (includes 6
                                        (include          classified:
                                        s 1               DOD, 5;
                                        classifi          Treasury, 1)
                                        ed)
1983          335         71    21.2   39           21   32 (includes 0
                                        (include          classified)
                                        s 1
                                        classifi
                                        ed)
1984          369         69    18.7   45           27   24 (includes 5
                                        (include          classified:
                                        s 5               DOD, 1; USAF,
                                        classifi          2; Treasury,
                                        ed)               2)
1985          343         88    25.7   39           25   49 (includes 8
                                        (include          classified:
                                        s 2               DIA, 3; NRC,
                                        classifi          2; DOD, 1;
                                        ed)               USN, 2)
1986          383         65      17   32           25   33 (includes 3
                                        (include          classified:
                                        s 1               DIA, 1; DOD,
                                        classifi          1; Treasury,
                                        ed)               1)
1987          396         57    14.4   35           26   22 (includes 2
                                        (include          classified) \2
                                        s 2               \
                                        classifi
                                        ed)
1988          412         79    19.2   39           26   40 (includes 7
                                        (include          classified) \2
                                        s 2               \
                                        classifi
                                        ed)
1989          344         55      16   38           22   17 (includes 4
                                        (include          classified) \2
                                        s 2               \
                                        classifi
                                        ed)
1990          364         51      14   23           18   28 (includes 10
                                        (include          classified) \2
                                        s 1               \
                                        classifi
                                        ed)
1991          280         30      11   18            8   12 (includes 1
                                        (include          classified) \2
                                        s 0               \
                                        classifi
                                        ed)
1992          296         56    18.9   38           19   18 (includes 8
                                        (include          classified) \2
                                        s 0               \
                                        classifi
                                        ed)
1993          243         45    18.5   26           12   19 (includes 10
                                        (include          classified) \2
                                        s 0               \
                                        classifi
                                        ed)
1994          313         27     8.6   15           10   12 (includes 0
                                        (include          classified)
                                        s 1
                                        classifi
                                        ed)
1995          276         29    10.5   11            8   18 (includes 6
                                        (include          classified:
                                        s 0               Treasury, 5;
                                        classifi          DIA, 1)
                                        ed)
1996          225         41      18   28           11   13 (includes 5
                                        (include          classified:
                                        s 3               DIA, 3; Navy,
                                        classifi          2)
                                        ed)
1997          212         29    13.6   18            7   11 (includes 1
                                        (include          classified:
                                        s 0               DIA)
                                        classifi
                                        ed)
1998          199         18       9   12            4   6 (includes 0
                                        (include          classified)
                                        s 0
                                        classifi
                                        ed)
1999          166         31    18.6   18            9   13 (includes 4
                                        (include          classified) \2
                                        s 3               \
                                        classifi
                                        ed)
        ----------------------------------------------------------------
1993-        1634        220    13.5   128          61   92
1999
Subtota
 ls
        ----------------------------------------------------------------
Totals-      7091       1245    17.5   675         326   570 (45.8% of
 -                                      (54.2%            total late)
all                                     of total
 years                                  late)
------------------------------------------------------------------------
\1\ Total includes those which are classified and/or late from posts.
\2\ Agencies not identified.


     One tool for determining when transmitted agreements are 
significantly more important than others is the background 
statement required to accompany the texts of each agreement. 
While the Case Act did not require such a statement, 
correspondence between the Senate Foreign Relations Committee 
and the State Department included the requirement for a 
background statement for each classified agreement.\48\ The 
regulation implementing the Act stipulates that each agreement, 
classified or unclassified, be accompanied by a background 
statement including ``information explaining the agreement, the 
negotiations, the effect of the agreement, and a precise 
citation of legal authority.'' \49\ These statements can be 
useful in setting a context for committee staff and members.
---------------------------------------------------------------------------
    \48\ See above, under Implementation, 1972-1976.
    \49\ 22 CFR 181.7, see Appendix, infra.
---------------------------------------------------------------------------
 Late transmittal of Case Act agreements
     The number of agreements which were not transmitted to 
Congress within the 60-day time limit is still a source of 
concern although the numbers are notably lower in recent years 
than in earlier periods. Referring to Table X-1, between 1978 
and 1985, the percent of late transmittals to total agreements 
transmitted was often between 20 and 25 percent. Between 1985 
and 1992, the percent of late to total transmittals dropped 
below 20 percent, falling to 11 percent in 1991 and 18.9 
percent in 1992. Between 1993 and 1999, the percent of late to 
total transmittals fell to 13.5 percent. Some agreements are 
still transmitted months or even a year or two late. In some 
cases, it is only when an agreement is amended that the 
original comes to light.
     Table X-1 also shows that during the period 1978-1992, 547 
agreements transmitted after the 60-day date, or 53.4 percent, 
originated from the State Department, including 265 agreements 
arriving late from overseas posts into the Department. During 
the same period, 478 agreements, or 46.7 percent of the total 
agreements transmitted late, were transmitted late to the State 
Department from other executive branch agencies. In comparison, 
for the period 1993-1999, 128 or 58.2 percent of the 220 
agreements transmitted late originated within the Department of 
State, including 61 from overseas posts, while 92 agreements or 
41.8 percent of all late transmittals, originated from other 
agencies of the U.S. Government.
     Table X-2 shows that over the 14-year period, from 1979 
through 1992, a total of 29 agencies, other than the State 
Department, at one time or another, submitted at least one 
executive agreement to the State Department in such fashion 
that the State Department could not transmit the agreement to 
the Congress within the required 60 days after entry into 
force.\50\ This does not include classified agreements, about 
which information on the agency of origin was absent in the 
reports covering 1987 through 1993 and for 1999. In this 
initial 14-year period, the top four late reporting agencies 
were the Federal Aviation Administration (FAA), the Agency for 
International Development (AID), the Nuclear Regulatory 
Commission (NRC), and the Department of Defense (DOD), followed 
by the U.S. Trade Representative (USTR). Practice over the 7 
years since 1992 has improved, with 22 agencies (eight of them 
new to the list) reported as submitting a total of 92 
agreements late. The FAA, DOD, and NRC have been joined by the 
U.S. Geological Survey. The USTR and AID have probably fared 
better because of arrangements that eliminated many of the 
classes of agreements initially required for submittal.
---------------------------------------------------------------------------
    \50\ The report for 1978, the initial report, did not include an 
agency breakdown on the 87 unclassified agreements received late from 
other agencies.

       Table X-2.--Agencies Submitting Agreements Late, 1979-1999
------------------------------------------------------------------------
                                                    Number of  Number of
                  Name of Agency                   Agreements    Years
------------------------------------------------------------------------
Federal Aviation Administration..................          23         15
Department of Defense............................          34         15
Nuclear Regulatory Commission....................          59         13
U.S. Geological Survey...........................          19         13
U.S. Trade Representative........................          47         12
Agency for International Development.............          42         12
Department of Energy.............................          21         10
Department of the Navy...........................          22          8
Department of Agriculture \1\....................          13          7
Department of the Air Force......................           8          7
U.S. Postal Service \1\..........................          12          6
National Science Foundation......................          11          5
National Aeronautics and Space Administration....          14          5
Peace Corps......................................           5          5
Department of the Interior \1\...................           4          4
Defense Mapping Agency \1\.......................           5          4
Department of Justice \1\........................           5          4
U.S. Information Agency..........................           8          4
Department of the Treasury.......................          13          4
Overseas Private Investment Corporation..........           7          4
Defense Intelligence Agency......................           5          4
Food and Drug Administration \1\.................           4          3
Department of Transportation \1\.................           5          3
Department of the Army...........................           3          3
Department of Commerce \1\.......................           2          2
Defense Security Assistance Agency...............           2          2
U.S. Customs Service.............................           3          2
Department of Health and Human Services \1\......           2          1
General Services Administration \1\..............           1          1
National Bureau of Standards (NIST) \1\..........           1          1
National Oceanographic and Atmospheric                      1          1
 Administration \1\..............................
U.S. Coast Guard \1\.............................           1          1
Department of Labor \1\..........................           1          1
Bureau of Mines..................................           1          1
Advanced Research Projects Agency................           1          1
National Institutes of Health....................           1          1
International Boundary Waters Commission.........           1          1
                                                  ------------
    Totals: 37 Agencies..........................        423
------------------------------------------------------------------------
\1\ Indicates agency has not been included in the late transmittal
  report after 1992.


     The State Department uses the occasion of the late 
agreements report to remind executive branch agencies and 
Department offices and overseas posts of their responsibilities 
to submit to the Treaty Office the texts of any agreements it 
concludes within 20 days after signature. Copies of the 
regulation and/or Circular 175 are forwarded to each office.
     Generally, the ``late agreements'' report does not provide 
a very detailed explanation for the lateness of transmittal. 
Instead, it lists the agreements by origin: agreements received 
in the Department of State from other agencies (the agency is 
identified for each agreement); agreements received late from 
the action office in the Department of State; agreements 
received late from posts abroad; agreements transmitted late 
due to internal procedures; and agreements, as appropriate, 
received late from the depositary government or organization. 
The earlier reports, for 1978-1981, often included a little 
more detail in an annotation for those agreements originating 
in the State Department. The legislative requirement for the 
late agreements report anticipated that the report would 
describe ``fully and completely the reasons for the late 
transmittal.''
     Similarly, the background statements transmitted along 
with the agreements do not include any explanation of the 
lateness of the agreement. Another mechanism that might prove 
useful in obtaining information on the reasons for late 
transmittal, irrespective of the agency of origin, might be a 
consultation involving the two committees, the State 
Department, and an appropriate White House official. In this 
way, some of the possible difficulties in meeting the deadlines 
for transmittal might be discussed, with some equitable 
resolution achieved.
 Insufficient transmittal of agreements to Congress
     One category of agreement that may contribute to confused 
expectations over what will be transmitted is so-called ``gray 
area'' agreements. These agreements, concluded in a non-binding 
form or determined by the executive branch to be legally non-
binding on the United States, are not referred to Congress 
under the Case Act procedures although the executive branch may 
voluntarily provide information about them to Congress. Non-
binding international agreements have been used in several 
important areas in recent years.\51\ They are viewed as 
involving political or moral obligations but not legal 
obligations. A prominent example is the 1975 Final Act of the 
Conference on Security and Cooperation in Europe (CSCE), better 
known as the Helsinki Agreement.
---------------------------------------------------------------------------
    \51\ See discussion of nonbinding agreements and functional 
equivalents in Chapter III above.
---------------------------------------------------------------------------
     Another example is the 1978 Bonn Declaration on 
International Terrorism, which did not take the form of an 
international agreement but was supported by assurances from 
the governments involved that they would take steps to carry it 
out. This Declaration was followed during successive years with 
additional statements or declarations by the heads of state and 
government of the Economic Summit countries. For example, the 
1986 Tokyo Economic Summit Conference Statement on 
International Terrorism, May 5, 1986, listed six measures the 
Summit leaders were prepared to apply in response to any state 
supporting terrorism.\52\ Later statements endorsed the Bonn 
Declaration and Tokyo Statement and referred generally to the 
cooperative efforts under way by the Summit countries. 
Illustrative of the coordination and cooperation that developed 
under this framework were the actions by many West European 
countries to expel diplomats and staff of Iraqi Embassies and 
other Iraqi offices and other potential saboteurs and 
terrorists during the Persian Gulf war.\53\ The collaboration 
initiated in response to the Bonn and Tokyo documents might be 
said to have contributed to the success in preventing massive 
and significant acts of terrorism in coalition countries.
---------------------------------------------------------------------------
    \52\ U.S. Congress. House. Committee on Foreign Affairs. 
International Terrorism: A Compilation of Major Laws, Treaties, 
Agreements, and Executive Documents. Report Prepared by the 
Congressional Research Service, Library of Congress, July 1991. 
Washington, U.S. Government Printing Office, 1991. (102d Cong., 1st 
Sess., Committee Print) Carries the texts of the Economic Summit 
statements and declarations on international terrorism, 1978-1990, pp. 
290-301. A July 2000 update of this compilation by the same title for 
the House. Committee on International Relations, carries Economic 
Summit texts starting in 1986.
    \53\ U.S. Department of State. Office of the Coordinator for 
Counterterrorism. Patterns of Global Terrorism: 1991. Washington, 1992. 
pp. 7-11, 14-15.
---------------------------------------------------------------------------
     Another subject area where nonbinding agreements or 
arrangements play a significant role is multilateral 
nonproliferation regimes.\54\ In these instances, a number of 
supplier nations have decided to meet on a more or less regular 
basis to draft and approve guidelines under which the 
participating nations will limit or restrict their export of 
agreed upon materials. No formal and publicly accessible 
documentation appears to be available, either on the 
establishment of these arrangements or on the actions or 
decisions taken at the meetings. The whole activity is 
voluntary and any agreements concluded are viewed as political 
in nature rather than having legal standing.\55\ The 
participating countries, however, often behave as though a real 
commitment exists. Since the Case Act requires that all 
agreements other than treaties be transmitted and that oral 
agreements be put into writing, and establishes a procedure for 
the transmittal of classified agreements, and in the light of 
increased multilateral activity in these areas in the post-Cold 
War era, some believe these kinds of arrangements could 
represent a large loophole.
---------------------------------------------------------------------------
    \54\ The information on this subject area is taken from U.S. 
Congress. House. Committee on Foreign Affairs. Nonproliferation 
Regimes: Policies to Control the Spread of Nuclear, Chemical, and 
Biological Weapons and Missiles. Committee Print, 103d Cong., 1st 
Sess., March 1993. Washington, U.S. Government Printing Office, 1993. 
Hereafter cited as Davis, Nonproliferation. See also Department of 
State Web site, http://www.state.gov, under Arms Control, 
Nonproliferation.
    \55\ In the nuclear supplier area, two arrangements exist. The 
first, the Nuclear Exporters Committee (known as the Zangger 
Committee), was formed in the early 1970s by seven nations to 
``reinforce and assist in the implementation of the restrictions on 
nuclear trade included in Article III of the NPT'' (the 1970 Treaty on 
the Nonproliferation of Nuclear Weapons). The Zangger Committee, in 
1974, drew up a ``list of nuclear export items that could be 
potentially useful for military applications of nuclear technology. The 
nuclear suppliers agreed that the transfer of items on the list would 
`trigger' application of IAEA safeguards to assure that the items were 
not used for the development of nuclear explosives.'' (Davis, 
Nonproliferation, pp. 20-21) The Zangger Committee meets twice a year. 
The second arrangement is the Nuclear Suppliers Group (the London 
Group), that met for the first time in 1975 to develop a set of nuclear 
export guidelines. In 1978, the group ``announced a common policy 
regarding nuclear exports,'' including some ``dual-use'' items on its 
list. The 1992 meeting of the NSG agreed on new guidelines and sought 
to coordinate its list with the Zangger Committee list. (Davis, 
Nonproliferation, pp. 20-21, 52) Another arrangement, the Australian 
Group, developed in 1984 in response to an Australian initiative, under 
which member nations of the Organization for Economic Cooperation and 
Development (OECD) ``joined together to establish voluntary export 
controls on certain chemicals.'' This is ``an informal organization 
open to any nation seeking to stem CW [chemical weapons] 
proliferation'' and has 20 members. (Davis, Nonproliferation, pp. 35-
36, 54) A final arrangement, the Missile Technology Control Regime 
(MTCR), was set up among the seven Economic Summit nations in April 
1987 to ``limit the proliferation of missiles capable of delivering 
nuclear weapons.'' Twenty-two nations are now ``partners'' in the MTCR. 
(Davis, Nonproliferation, pp. 45-46, 49-51)
---------------------------------------------------------------------------
     Another group of agreements that are not transmitted under 
the Case Act are those the State Department views as contracts; 
they are usually commercial in nature, involving sales or 
loans. In 1990, a class of agreements previously transmitted 
under the Case Act was removed from the definition of 
agreements as a result of a State Department interpretation of 
language in the 1990 congressional reform of the Agricultural 
Trade Development and Assistance Act of 1954, Title I of Public 
Law 480.\56\ The reinterpretation was based on language changes 
in the 1990 farm act that authorized the Secretary of 
Agriculture rather than the President to ``negotiate and 
execute agreements * * * to finance the sale and exportation of 
agricultural commodities * * *.'' \57\ As a result of this and 
other changes affecting Public Law 480, Title I, the agreements 
concluded under this section were interpreted as contracts, 
rather than as agreements. This represented an average of 60 to 
80 agreements formerly transmitted under the Act annually and 
lowered the number of agreements transmitted in 1991 (see Table 
X-1 above).\58\ The thrust of the Case Act, however, was to 
ensure that the Congress was aware of potentially significant 
commitments made by executive agreement. Fiscal year 1991 
values for Public Law 480, Title I agreements concluded by the 
U.S. Department of Agriculture ranged from $2 million to the 
Congo to $165 million to Egypt. Any new trend increasing the 
value of agreements made or increasing the number of agreements 
signed with any one country might signal a qualitative change 
in U.S. policy direction toward a country or bring into 
question the potential for misuse of the credits provided. The 
two committees may decide to initiate consultations on a formal 
State Department interpretation and a change in procedures that 
would ensure that the Secretary of Agriculture would submit to 
the Department for Case Act transmittal Public Law 480, Title I 
agreements under certain specified circumstances.\59\
---------------------------------------------------------------------------
    \56\ See section 1512 of Public Law 101-624, Food, Agriculture, 
Conservation, and Trade Act of 1990, approved November 28, 1990; often 
referred to as ``the 1990 farm act.''
    \57\ 7 U.S.C. 1701 (b)
    \58\ This information is based on discussions with the Office of 
Assistant Legal Adviser for Treaty Affairs and with CRS specialists 
covering Public Law 480 aid.
    \59\ See discussion of AID agreements above under Implementation, 
1972-1976.
---------------------------------------------------------------------------
 Pre-Case Act executive agreements
     During consideration of the Case Act in 1972 the Senate 
report clearly outlined the Senate Foreign Relations Committee 
intent that although the Case Act did not include past 
executive agreements, they were also to be provided if 
requested in the same manner as Case Act agreements.\60\ The 
only instance remembered by International Relations and Foreign 
Relations committee staff in which a Member of Congress had 
asked for pre-Case Act agreements was Senator Jesse Helms' 
request for the texts of all exchanges between the United 
States and the Soviet Union during the 1962 Cuban Missile 
Crisis. While some written exchanges were declassified and 
published in 1972, Senator Helms maintained that oral 
agreements made at the time and in the years since have changed 
the original understandings and that these have not been made 
available to the committee.\61\
---------------------------------------------------------------------------
    \60\ U.S. Congress. Senate. Committee on Foreign Relations. 
Transmittal of Executive Agreements to Congress. Report to accompany S. 
596. Washington, U.S. Government Printing Office, 1972, p. 4 (92d 
Cong., 2d Sess. S. Rept. 92-591.)
    \61\ Helms, Jesse. The Kennedy-Khrushchev Accords--Do They Exist? 
Congressional Record, vol. 129, part 20, October 20, 1983: 28791.
---------------------------------------------------------------------------
     The State Department has denied the existence of an 
agreement between the United States and the Soviet Union about 
Cuba, and no such agreement is listed in the State Department's 
annual U.S. Treaties in Force. The letters between the two 
countries are described as an understanding by each country of 
the intentions of the other country toward Cuba, but not an 
agreement on conduct of either.\62\ Since 1962, U.S. and Soviet 
representatives met several times and agreed that they would 
abide by the intentions expressed in the 1962 letters, but the 
two countries were not agreed on what behavior constituted 
abiding by the letters. In January 1992, the State Department 
declassified and released an additional 12 letters from the 
October through December 1962 period.\63\ These additional 
letters were not transmitted to Senator Helms since they were 
not viewed as agreements under international law.
---------------------------------------------------------------------------
    \62\ Telephone conversation with Department of State, Office of the 
Legal Adviser, Dec. 12, 1983. Updated by phone conversation with the 
Office of the Assistant Legal Adviser for Treaty Affairs, March 4, 
1993.
    \63\ Department Releases Kennedy-Khrushchev Correspondence on Cuban 
Missile Crisis. Statement, January 6, 1992. U.S. Department of State 
Dispatch, January 13, 1992: 29. The full exchange of correspondence was 
published in Problems of Communism, Special Edition, v. 41, Spring 1992 
(A bimonthly publication of the United States Information Agency.)
---------------------------------------------------------------------------

                  B. Consultations on Form of Agreement

     A second major problem for Congress has been to ensure 
that the most important international agreements have the 
status of treaties or are authorized by the entire Congress. 
The Senate particularly was concerned that the executive branch 
may use executive agreements as a substitute for treaties to 
avoid submitting them to the Senate for advice and consent. The 
Foreign Relations Committee in 1976 and 1978 considered a 
measure, referred to as the Treaty Powers Act, by which the 
Senate, through passage of a simple (one-House) resolution 
requiring the submission of a particular international 
agreement as a treaty, could prevent funding to execute that 
agreement until it was submitted as a treaty. In lieu of this 
measure, the Senate passed S. Res. 536 on September 8, 1978, 
stating the sense of the Senate that,
         in determining whether a particular international 
        agreement should be submitted as a treaty, the 
        President should have the timely advice of the 
        Committee on Foreign Relations through agreed 
        procedures established with the Secretary of State.

 This resolution formalized a procedure which was negotiated by 
the committee with the State Department earlier that year.
     Under these procedures the House International Relations 
and Senate Foreign Relations Committees would receive a 
periodic list of significant international agreements which 
have been cleared for negotiation, a citation of the legal 
authority for the agreement, and the expected form the 
agreement would take (treaty or executive agreement). Each 
committee would then have the opportunity of consulting with 
the administration over the proposed form of the agreement. 
Under the negotiated agreement, the State Department wrote to 
then Chairman of the Senate Foreign Relations Committee John 
Sparkman:
          If agreeable to you, we propose to send you 
        periodically a confidential list of significant 
        international agreements which have been authorized for 
        negotiation pursuant to the Circular 175 procedure. The 
        list would briefly discuss the subject matter of the 
        agreements listed and indicate their anticipated 
        form.\64\
---------------------------------------------------------------------------
    \64\ U.S. Congress. Senate. Committee on Foreign Relations. 
International Agreements Consultation Resolution. Report to Accompany 
S. Res. 536. Washington, U.S. Government Printing Office, 1978, pp. 2-
3. (S. Rept. 95-1171, 95th Cong., 2d Sess.)

 In his reply, Senator Sparkman indicated that he hoped the 
consultation would take place concerning agreements negotiated 
by the Department of State as well as those negotiated by other 
departments and agencies.\65\
---------------------------------------------------------------------------
    \65\ Ibid.
---------------------------------------------------------------------------
     In current practice, the list of agreements is selective, 
chosen by the administration based on its perception of the 
interests of Congress. In making the selection, the State 
Department takes into account the agreement's importance to 
Congress in the view of the agency negotiating the agreement, 
the significance of the agreement, and the political importance 
of the country. In addition, on occasion the Treaty Office has 
consulted informally with International Relations or Foreign 
Relations Committee staff on the appropriate form of an 
agreement. In these instances, a formal record, such as a 
memorandum of conversation, may not exist. In the committees, 
the formal negotiations lists are circulated and filed in a 
manner similar to the classified agreements submitted under the 
Case Act.
     The Department of State or another agency may consult with 
other Members or congressional committees on the substance of 
an agreement either before or after sending the confidential 
list letter. Prior consultation on the substance of an 
agreement is not used as a basis for excluding the agreement 
from the negotiations list sent to the Foreign Relations and 
International Relations Committees.
     Another requirement under which Congress is to be 
consulted over the form that an agreement might take, although 
this does not substitute for the formal procedure described 
above, is contained in Circular 175 procedures (Section 721.4). 
These are the Department's internal procedures for negotiating 
and signing treaties and executive agreements, contained in 
Chapter 700, volume 11 of the Department of State's Foreign 
Affairs Manual, most recently revised in 1985.\66\ Among its 
objectives, the 1985 revision included ``timely and appropriate 
consultation'' with Congress on treaties and other 
international agreements, and compliance with the Case Act.
---------------------------------------------------------------------------
    \66\ These guidelines are generally referred to as the Circular 175 
procedures of December 13, 1955. The text can be found in Appendix 4.
---------------------------------------------------------------------------
     Circular 175 states that a request for authorization to 
negotiate and/or sign a treaty or other international agreement 
should take the form of a written ``action memorandum.'' This 
memorandum may request (1) authority to negotiate, (2) 
authority to sign, or (3) authority to negotiate and sign an 
international agreement. It should indicate what arrangements 
for congressional consultation and public comment have been 
planned. The action memorandum should be accompanied by any 
texts to be negotiated or signed, and a memorandum of law 
discussing thoroughly the bases for the type of agreement 
recommended. This justification should include consideration of 
the following eight factors:
           1. The extent to which the agreement involves 
        commitments or risks affecting the nation as a whole;
          2. Whether the agreement is intended to affect State 
        laws;
          3. Whether the agreement can be given effect without 
        the enactment of subsequent legislation by the 
        Congress;
          4. Past U.S. practice as to similar agreements;
          5. The preference of Congress as to a particular type 
        of agreement;
          6. The degree of formality desired for an agreement;
          7. The proposed duration of the agreement, the need 
        for prompt conclusion of an agreement, and the 
        desirability of concluding a routine or short-term 
        agreement; and
          8. The general international practice as to similar 
        agreements.

     When there is a question whether an international 
agreement should be concluded as a treaty or executive 
agreement, Circular 175 calls for consultation with 
congressional leaders and committees as may be appropriate. In 
addition, Section 723.1e states that the office or official 
responsible for the negotiation should, with the assistance of 
the Assistant Secretary of State for Congressional Relations, 
advise the appropriate congressional committees and leaders of 
the intention to negotiate significant new international 
agreements, consult them concerning the agreements, and keep 
them informed of negotiating developments affecting Congress, 
especially the need for implementing legislation. Where any 
especially important treaty or international agreement is 
contemplated, the Office of the Assistant Secretary for 
Congressional Relations is to be informed as early as possible 
by the office responsible for the subject.
     Circular 175, however, does not refer in any way to the 
negotiated procedure under which the two foreign affairs 
committees are to be consulted over the appropriate form for 
proposed agreements.

            C. Congressional Review or Approval of Agreements

     Congress has sometimes established an oversight role by 
requiring in legislation that certain categories of agreements 
be transmitted to it. Table X-3 describes the statutory 
provisions of this nature. This list is not comprehensive, but 
represents the main provisions in the U.S. Code requiring 
agreements to be sent to the Congress.\67\
---------------------------------------------------------------------------
    \67\ A search of the computerized U.S. Code to identify laws with 
some combination of ``international agreement,'' ``submit,'' 
``transmit'' and ``report'' within 25 words of ``Congress'' resulted in 
2,085 citations. Raymond J. Celada, Senior Specialist in American 
Public Law, CRS, reviewed the texts of those citations, and identified 
20 that were relevant. This author further reviewed the texts of 19 of 
those 20 (one was the Case Act, discussed in the first part of this 
chapter) in the U.S. Code Annotated (USCA) and its 1992 pocket parts, 
narrowing the provisions to ten. A review of the most recent USCA and 
its 2000 pocket parts for the ten provisions in Table X-3 resulted in 
few substantive changes.

                                      Table X-3.--Statutory Requirements for Transmittal of Agreements to Congress
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      Transmittal Before   Approval Required                           Specified       Are Congressional
   Title of Act and Public Law        Subject of        or After Entry      for Entry into        Disapproval        Recipients of      Procedures Set
        Citation [U.S.C.]              Agreement          into Force?         Force? How?      Provisions? How?       Agreements            Forth?
--------------------------------------------------------------------------------------------------------------------------------------------------------
Atomic Energy Act of 1954, as     Nuclear             Before; 30-day      Yes; Joint          Yes; Joint          SFRC, HFAC \1\....  Yes, general
 amended (P.L. 83-703); Sections   Cooperation         waiting period.     Resolution.         Resolution.                             provisions
 123 & 130 (g),(h) & (i) [42       Agreements.
 U.S.C. 2153 & 2159 (g), (h), &
 (i)].
Atomic Energy Act of 1954, as     Nuclear             Before; 60-day      Yes; Joint          Yes; Joint          SFRC, HFAC, HASC,   Yes, general
 amended (P.L. 83-703); Sections   Cooperation         waiting period.     Resolution.         Resolution.         SASC.               provisions
 91c, 144 b or c; and Sections     Agreements
 123 & 130 (g), (h), & (i) [42     relating to
 U.S.C. 2153 & 2159 (g), (h) &     defense materials
 (i)].                             or military uses.
Fishery Conservation and          International       Before; 60-day      No; will enter      Yes; Joint          House & Senate;     Yes, detailed
 Management Act of 1976, as        Fisheries           waiting period.     into force if No    Resolution.         HMM&F, SFRC, S      provisions
 amended (P.L. 94-265) Section     Agreements                              action within 60                        Commerce.
 203 [16 U.S.C. 1823].             (GIFAs).                                days.\2\.
Taiwan Relations Act (P.L. 96-    Agreements made by  After.............  No................  No................  Congress..........  No
 8), Section 12 [22 U.S.C. 3311].  the American
                                   Institute in
                                   Taiwan.
Social Security Amendments of     Social security     Before; 60-day      No; will enter      Yes; resolution of  Congress..........  No
 1977 (P.L. 95-216), Section 317   agreements          waiting period.     into force if No    either house.
 [42 U.S.C. 433].                  between U.S. and                        action within 60
                                   foreign social                          days.
                                   security systems.
International Development and     International       Before............  No................  No................  SFRC, HFAC, H & S   No
 Food Assistance Act of 1978, as   agreements                                                                      Appropriations.
 amended (P.L. 95-424), Section    concerning debt
 603 (a)(2) [22 U.S.C. 2395a       relief 30 days.
 (2)].
Enterprise for the Americas       Any agreement with  30 days before....  No................  No................  HFAC, SFRC, H & S   No
 Initiative Act of 1992 (P.L.      any foreign                                                                     Agriculture.
 102-532), Section 2 [7 U.S.C.     government
 1738q].                           resulting in any
                                   debt relief under
                                   Title VI of the
                                   Agricultural
                                   Trade Development
                                   & Assistance Act
                                   of 1954, as
                                   amended.
Trade Act of 1974, as amended     Agreements on       Before; Section     Yes; Joint          No................  Congress..........  Yes
 (P.L. 93-618), Section 405 [19    trade relations     151 process.        Resolution.
 U.S.C. 2435].                     with nonmarket-
                                   economy countries.
OTCA of 1988, as amended \3\      Agreements on       Before; Section     Yes; Joint          No................  House; Senate.....  Yes; detailed
 (P.L. 100-418), Sections 1102     elimination of      151 process.        Resolution.                                                 process
 (b) & 1103 (a) and Trade Act of   non-tariff
 1974, as amended (P.L. 93-618),   barriers.
 Section 151 [19 U.S.C. 2191].
OTCA of 1988, as amended (P.L.    Bilateral           Before; Section     Yes; Joint          No................  House; Senate.....  Yes; detailed
 100-418), Sections 1102 (c) &     agreements          151 process.        Resolution.                                                 process
 1103 (a) [19 U.S.C. 2903] Trade   regarding tariff
 Act of 1974, as amended (P.L.     and nontariff
 93-618), Section 151 [19 U.S.C.   barriers.
 2191].
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Guide to abbreviations of committee names: SFRC--Senate Committee on Foreign Relations; HFAC--House Committee on Foreign Affairs, now House
  Committee on International Relations; HASC--House Armed Services Committee; SASC--Senate Armed Services Committee; HMM&F--House Merchant Marine and
  Fisheries Committee, now House Committee on Resources; S Commerce--Senate Committee on Commerce, Science, and Transportation; S Agriculture--Senate
  Committee on Agriculture, Nutrition, and Forestry.
\2\ Many GIFAs have been approved by Congress and entered into force before the end of the 60-day period.
\3\ OTCA is the Omnibus Trade and Competitiveness Act of 1988, Public Law 100-418.


    Almost all of the provisions require transmittal of the 
agreement to Congress prior to its entry into force. In only 
one of the ten cases, the Taiwan Relations Act, is the 
requirement similar to the Case Act requirement for transmittal 
after entry into force, and it differs by not having a deadline 
for transmittal. In that instance, the goal of the provision 
appears to be informational. Most of the legislation provides 
for congressional approval or disapproval of the agreement. An 
exception is the International Development and Food Assistance 
Act of 1978, as amended, which requires that agreements 
concerning debt relief be transmitted 30 days before they take 
effect, but does not provide for congressional action regarding 
the agreements. This would theoretically permit a congressional 
effort to halt the agreement, but there are no explicit 
procedures for this.
     The Social Security Amendments of 1977 provision allowing 
disapproval of social security agreements by a simple 
resolution of either house, a form of ``legislative veto,'' 
would seem a likely candidate for revision in light of the 
constitutional problems raised by the 1983 Supreme Court 
Decision of INS v. Chadha.\68\ In the remaining seven cases, 
such a legislative veto provision has been replaced by a 
requirement for a joint resolution of approval or disapproval. 
Provisions permitting Congress to reject or approve a proposed 
agreement by bill or joint resolution would not be affected by 
the Chadha decision. A joint resolution of approval would in 
all likelihood be signed by the President, but a joint 
resolution of disapproval would be subject to a veto by the 
President and thus require a two-thirds majority to override 
the President.
---------------------------------------------------------------------------
    \68\ 462 U.S. 919 (1983).
---------------------------------------------------------------------------
     The Fishery Conservation and Management Act of 1977, as 
amended, provides that the governing international fisheries 
agreements would enter into force at the end of a 60-day 
waiting period, unless Congress adopted a joint resolution of 
disapproval. The practice has been, however, that Congress has 
often, by legislation, approved the agreements, bringing them 
into force before the end of the 60-day period. The three trade 
agreement provisions all require affirmative approval by 
Congress to bring the agreement into force.

                     D. Required Reports to Congress

     A requirement that the executive branch report to Congress 
on some matter is an often used technique for maintaining 
oversight in the foreign affairs area. Some estimates of the 
number of reporting requirements in this field reach as high as 
820.\69\
---------------------------------------------------------------------------
    \69\ This figure is based on a count of foreign affairs related 
reporting requirements enacted by the Congress and in force as of the 
end of the 102d Congress in 1992.
---------------------------------------------------------------------------
     The reports may be required at regular intervals or upon 
the occurrence of a certain event. A much smaller number relate 
directly to oversight of international agreements. Table X-4 
provides a representative listing of such reports and their 
statutory basis. The reporting requirement process gives the 
Members and committees of Congress and their staff an 
informational tool for exploring further both past and future 
negotiations on a wide variety of issues.

                        Table X-4.--Required Reports Related to International Agreements
----------------------------------------------------------------------------------------------------------------
                                       Requirement/Citation to
              Agreement                          Law                   From Whom                Frequency
----------------------------------------------------------------------------------------------------------------
 Bretton Woods Agreements............  U.S. participation in    Treasury...............  Annual
                                        international
                                        financial institutions/
                                        P.L. 95-118, sec. 1701
                                        & P.L. 101-240, sec.
                                        541.
U.N. Charter.........................  Report on U.S.           President..............  Annual
                                        Participation in the
                                        United Nations/P.L. 79-
                                        264, sec. 4.
Various arms control agreements......  Adherence and            President..............  Annual, by January 31
                                        compliance with arms
                                        control agreements/
                                        P.L. 87-297, sec. 52,
                                        as amended.
Various trade agreements.............  Operation of the Trade   U.S. International       Annual
                                        Agreements Program/      Trade Commission.
                                        P.L. 93-618, sec. 163
                                        (b).
International Coffee Agreement, 1983.  Report on operation of   President..............  Annual
                                        agreement and the
                                        International Coffee
                                        Organization/P.L. 96-
                                        599, sec. 5, amended.
Nuclear Non-Proliferation Treaty.....  Review of government-    President..............  Annual, January
                                        wide activities to
                                        prevent proliferation/
                                        P.L. 95-242, sec. 601,
                                        amended.
U.N. Charter.........................  Special reports on       President..............  As occurs
                                        Security Council
                                        decisions to take
                                        enforcement measures/
                                        P.L. 79-264, sec. 4.
----------------------------------------------------------------------------------------------------------------


     In addition, the Senate, during its consideration of 
certain treaties, has added reporting requirements as a 
condition to its resolution approving U.S. ratification. For 
example, the Senate's ``advice and consent'' resolution of 
November 25, 1991, to the 1990 Treaty on Conventional Armed 
Forces in Europe (CFE) included a one-time requirement that the 
President certify to the Senate within 30 days of the 
resolution ``whether or not the Soviet Union is in violation or 
probable violation of the terms of the CFE Treaty and protocols 
thereto.'' On October 1, 1992, the Senate, in its resolution 
approving ratification of the 1991 Treaty on the Reduction and 
Limitation of Strategic Offensive Arms (START Treaty), required 
from the President within 180 days of the Senate resolution a 
one-time report on compliance with a number of arms control or 
reduction treaties including the SALT I Interim Agreement, SALT 
II, ABM, INF and START Treaties.

                E. Other Tools of Congressional Oversight

     Among other tools Congress has used for oversight of 
international agreements are implementation legislation, 
recommendations in legislation, consultation requirements, and 
oversight hearings. These are summarized briefly below. 
Further, section 136 of the 1970 Legislative Reorganization Act 
(Public Law 91-510), specifically required the committees of 
Congress to exercise oversight of those programs within their 
jurisdiction. An alternative approach that Congress has used in 
one instance is to establish a committee or commission, such as 
the [Helsinki] Commission on Security and Cooperation in 
Europe. This Commission, set up by Public Law 94-304, approved 
June 3, 1976, as amended, monitors the actions of the countries 
that signed the Final Act of the Conference on Security and 
Cooperation in Europe (CSCE), a nonbinding political agreement, 
especially those acts relating to human rights and cooperation 
in humanitarian fields. The Commission has 21 members, 18 of 
whom are members of the Congress. Three are from the executive 
branch. The President must report annually to Congress on 
compliance with or violation of provisions of the Final Act.

                     implementation legislation \70\
---------------------------------------------------------------------------

    \70\ See also section on Obligation to Implement in Chapter VIII 
above.
---------------------------------------------------------------------------
    Implementation legislation can be an effective method for 
overseeing a treaty or other international agreement. Many 
treaties require legislation to ensure implementation on a 
national basis of the international obligations established by 
the treaty. Congress might include in that implementation 
legislation certain provisions to ensure a congressional role 
in monitoring implementation of the treaty. Implementation 
legislation of this sort is often one-time legislation related 
to a treaty, but like other legislation it may be amended. Some 
citations to treaty implementation legislation are shown in 
Table X-5, for illustrative purposes.
     As Table X-5 shows, the subjects for implementation 
legislation are as varied as the subjects for the negotiation 
of treaties.
     Another type of implementation legislation occurs when the 
executive branch requests the authorization and appropriation 
of funds to carry out the terms of a treaty or international 
agreement other than treaty. When an international agreement 
requires funding, Congress is in a strong position to influence 
the extent to which that agreement will be implemented. 
Sometimes the provision of funds is a single legislative 
occurrence. Other agreements require an annual authorization 
and appropriation of funds, such as is authorized in the United 
Nations Participation Act, the implementing legislation for the 
U.N. Charter. Section 8 of this law authorizes annual 
appropriations for U.S. contributions to the United Nations. 
The annual authorization and appropriations for the Department 
of State are accompanied by hearings which give committees an 
opportunity to question the administration on U.S. 
participation in the United Nations.

                     recommendations in legislation

     Another tool for Congress to affect international 
agreements is legislation or resolutions asking the executive 
branch to initiate negotiations on an issue toward a specific 
goal or to ensure that an agreement under negotiation include a 
specific item of congressional interest. For example, in 
Section 37 of the Arms Control and Disarmament Act, as 
amended,\71\ Congress registered its sense ``that adequate 
verification of compliance should be an indispensable part of 
any international arms control agreement.''
---------------------------------------------------------------------------
    \71\ Public Law 87-297, approved Sept. 26, 1961, as amended by 
Public Law 95-108, August 17, 1977.

              Table X-5.--Legislation Implementing Treaties
------------------------------------------------------------------------
                                             Citation to Implementation
                Treaty Name                          Legislation
------------------------------------------------------------------------
1945 U.N. Charter.........................  P.L. 79-264, December 20,
                                             1945
1948 U.N. Convention on the Prevention and  P.L. 100-606, November 5,
 Punishment of the Crime of Genocide.        1988
1963 Convention on Offenses and Certain     P.L. 91-449, October 14,
 Other Acts Committed on Board Aircraft,     1970
 Tokyo.
1969 International Convention Relating to   P.L. 93-248, February 5,
 Intervention on the High Seas in Cases of   1974
 Oil Pollution Casualties, with annex.
1970 Convention for the Suppression of      P.L. 93-366, August 5, 1974
 Unlawful Seizure of Aircraft, Hague.
1971 Convention to Prevent and Punish Acts  P.L. 94-467, October 8, 1976
 of Terrorism Taking the Form of Crimes
 Against Internationally Protected Persons
 and Related Extortion That are of
 International Significance, OAS.
1971 Convention for the Suppression of      P.L. 98-473, October 12,
 Unlawful Acts Against the Safety of Civil   1984
 Aviation, Montreal.
1972 Convention on the Prohibition of the   P.L. 101-298, May 12, 1990
 Development, Production and Stockpiling
 of Bacteriological (Biological) and Toxin
 Weapons and on Their Destruction.
1973 Convention on the Prevention and       P.L. 94-456, October 8, 1976
 Punishment of Crimes Against
 Internationally Protected Persons,
 including Diplomatic Agents, New York
 (UN).
1977 Panama Canal Treaty..................  P.L. 96-70, September 27,
                                             1979
1979 Convention on the Physical Protection  P.L. 97-351, October 18,
 of Nuclear Material.                        1982
1979 Convention Against the Taking of       P.L. 98-473, October 12,
 Hostages.                                   1984
1990 Treaty on Conventional Armed Forces    P.L. 102-228, December 12,
 in Europe (CFE Treaty).                     1991
1993 Hague Convention on Protection of      P.L. 106-279, October 6,
 Children and Cooperation in Respect of      2000
 Intercountry Adoption.
------------------------------------------------------------------------


     In a second example, Congress, in 1990, adopted two laws 
on Antarctica, expressing its concerns on the preservation of 
the Antarctic environment. In the Antarctic Protection Act of 
1990, Congress stipulated that the Secretary of State negotiate 
an international agreement that would, among other things, 
``prohibit or ban indefinitely Antarctic mineral resource 
activities by all parties to the Antarctic Treaty.'' Congress 
further determined that ``any treaty or other international 
agreement submitted by the President to the Senate for its 
advice and consent to ratification relating to mineral 
resources or activities in Antarctica should be consistent with 
the purpose and provisions of this Act.'' \72\ In a second law, 
Protection of Antarctica as a Global Ecological Commons, 
Congress stated that ``pending negotiation and entry into force 
of * * * new agreements'' regarding environmental protection, 
the 1988 ``Convention on the Regulation of Antarctic Mineral 
Resource Activities should not be presented to the Senate for 
advice and consent to ratification.'' \73\ As a result of these 
provisions, the executive branch went back into negotiations, 
working out a Protocol on Environmental Protection to the 
Antarctic Treaty that was adopted in October 1991, submitted to 
the Senate in February 1992, and approved by the Senate in 
October 1992 for U.S. ratification. The Protocol, with its 
annexes, establishes a comprehensive, legally binding 
environmental protection regime for Antarctica and prohibits 
all Antarctic mineral resource activities, except for 
scientific research. This prohibition may not be reviewed until 
at least 50 years following entry into force of the Protocol.
---------------------------------------------------------------------------
    \72\ Public Law 101-594, approved November 16, 1990.
    \73\ Public Law 101-620, approved November 16, 1990.
---------------------------------------------------------------------------
     The House and the Senate, acting separately in simple 
resolutions, or jointly, in concurrent or joint resolutions, 
have over the years expressed their views on a variety of 
circumstances, including those calling on the President or 
other officials of the executive branch to negotiate an 
agreement on a particular issue or to take a particular 
position on a set of negotiations or vis-a-vis another 
government.\74\
---------------------------------------------------------------------------
    \74\ A list of these resolutions may be found in the Legislative 
Review Activities Report of the House Committee on International 
Relations and the Legislative Activities Report of the Senate Committee 
on Foreign Relations, each of which covers an entire Congress. Other 
expressions of position may be found in such omnibus pieces of 
legislation as the Foreign Relations Authorization Act and the Foreign 
Assistance Act of 1961, as published in the multi-volume compilation, 
Legislation on Foreign Relations, published annually as a joint 
committee print of the House International Relations and Senate Foreign 
Relations Committees.
---------------------------------------------------------------------------

                        consultation requirements

     Another method of keeping track of administration actions 
on international agreements is to provide in legislation for 
consultation with Congress prior to or during negotiations that 
would result in a treaty or executive agreement. The Omnibus 
Trade and Competitiveness Act includes mechanisms for 
consultation on negotiations including the selection of five 
members of the House Ways and Means Committee and Senate 
Finance Committee as congressional advisers for trade policy 
and negotiations who would be accredited by the U.S. Trade 
Representative as official advisers to U.S. delegations to 
international conferences, meetings, and negotiating sessions 
when trade agreements are involved.\75\ This section also 
provides for regular consultations with the appropriate 
committees on U.S. trade policy and direction.
---------------------------------------------------------------------------
    \75\ Section 1632, Omnibus Trade and Competitiveness Act of 1988, 
Public Law 100-418, approved August 23, 1988.
---------------------------------------------------------------------------
     Congress has also sought consultation on the termination 
of a treaty. The International Security Assistance Act of 1978 
contained the following clause regarding the Mutual Defense 
Treaty with the Republic of China: ``It is the sense of the 
Congress that there should be prior consultation between 
Congress and the executive branch on any proposed changes 
affecting the continuation in force of the Mutual Defense 
Treaty of 1954.'' \76\ It might be noted that the treaty was 
terminated by the President with almost no real consultation 
with Congress.\77\ In another example, U.S. withdrawal of its 
declaration accepting the compulsory jurisdiction of the World 
Court, a concurrent resolution deploring the U.S. notification 
was introduced and hearings held, but Congress did not approve 
the resolution.\78\
---------------------------------------------------------------------------
    \76\ Section 26, Public Law 95-384, approved September 26, 1978. On 
December 23, 1978, the State Department delivered notice, effective 
January 1, 1979, that the United States was terminating the treaty. 
Under Article X, the treaty remained in force until January 1, 1980.
    \77\ U. S. Congress. House. Committee on Foreign Affairs. 
Executive-Legislative Consultation on China Policy, 1978-1979. By 
Robert G. Sutter. Committee Print, June 1980.
    \78\ For discussion see Chapter VIII.
---------------------------------------------------------------------------

                           oversight hearings

     In keeping with the overall obligation of committees to 
maintain oversight of executive branch programs within their 
jurisdiction, international agreements in their various stages 
have been monitored in Congress. This has included hearings on 
the need for and purpose of negotiations, the status and 
direction of negotiations, the agreements resulting from 
negotiations and their impact and implementation requirements, 
and after they come into force, the nature and effect of 
compliance with the provisions of the agreements.
     For example, at different times between 1983 and 1992, 
various committees in Congress have held hearings on the 1982 
U.N. Convention on the Law of the Sea, which was negotiated, 
with constant congressional review, over a previous 8- to 11-
year period. The focus of occasional hearings during the 1980s 
was the extent to which U.S. interests were served by remaining 
outside the treaty and legislative and other steps that might 
be required to best protect U.S. law of the sea interests. On 
other issues, the Senate Foreign Relations Committee during 
1991 and 1992, held hearings on possible nuclear proliferation 
issues in North Korea, conducted regular hearings on 
developments regarding chemical weapons proliferation and 
efforts to negotiate a treaty in this area, and held a series 
of hearings in 1991 on ``issues related to a bilateral Free 
Trade Agreement with Mexico,'' to name only a few examples.


             XI. TRENDS IN MAJOR CATEGORIES OF TREATIES \1\
---------------------------------------------------------------------------

    \1\ Prepared by Richard F. Grimmett, Specialist in National Defense 
and the following CRS analysts and attorneys who made specialized 
contributions to various sections: Amy Wolff, Jonathan Medalia, Jeanne 
J. Grimmett, Robert Burdette, Susan Fletcher, Charles Doyle, Larry Eig, 
Vita Bite and Lois McHugh.
---------------------------------------------------------------------------
                              ----------                              

    The subject matter of treaties is varied and reflects 
changing circumstances that affect U.S. foreign policy 
interests. In the first decade after World War II, from 1945 
through 1955, treaties established a network of political and 
security alliances that provided a framework that endured 
throughout the Cold War. Later, the focus of political-security 
treaties shifted to arms control. The end of the Cold War 
brought new or revised agreements with a number of Eastern 
European nations and the independent states formed from the 
former Soviet Union and the former Yugoslavia. A security 
treaty framework to reflect the new international environment 
in the post-Cold War era is still emerging.
    New policy concerns have led to a growing importance of 
treaties outside the traditional political-security field. 
Economic treaties, including consular, investment, and tax 
agreements, have become the main component of such treaties 
submitted to the Senate. To deal with international narcotics 
trafficking and other crimes, the United States has embarked on 
a new series of treaties for legal cooperation, such as 
extradition and mutual legal assistance treaties (MLATs). 
Treaties for conservation of certain species of wildlife and 
regulation of fisheries have been supplemented with broad 
treaties for environmental cooperation.
    The number of treaties submitted to Congress reflects the 
legislative-executive balance of power and views regarding 
which international agreements must be submitted to the Senate. 
After the immediate post-World War II period, few significant 
political and military commitments, except in arms control, 
were made by treaty. For the rest of the Cold War, the Senate 
acquiesced when Presidents expanded the post-World War II 
treaty framework with executive agreements.\2\ In the case of 
the Treaty on the Final Settlement with Respect to Germany, 
discussed below, the Senate insisted it be submitted as a 
treaty.
---------------------------------------------------------------------------
    \2\ For example, after getting the Spanish Bases Agreement 
submitted to the Senate as a treaty in 1975, the Senate agreed that a 
successor base agreement could be concluded as an executive agreement 
when Spain became a member of the North Atlantic Treaty Organization 
(NATO), in keeping with agreements with other NATO countries. Agreement 
Extending for Eight Months Provisions of the Treaty of Friendship and 
Cooperation with Spain (Treaty Doc. 97-20, September 4, 1981, approved 
by Senate November 18, 1981), Exec. Rept. 97-24, November 9, 1981.
---------------------------------------------------------------------------
    A principal concern of Presidents about treaties has been 
that a minority in the Senate could use the advice and consent 
power to block executive branch plans or even the will of the 
majority in the Senate. In practice the Senate has rejected few 
treaties either directly or indirectly and, except for the 
Versailles Treaty providing for membership in the League of 
Nations, the rejection of treaties by the Senate has seldom 
affected foreign policy in a major way. The Senate has 
continued in its long-established pattern of approving most 
treaties without crippling conditions. At the same time, the 
Senate has added conditions on the substance of treaties when 
it deemed conditions essential, as in certain arms control, 
tax, and human rights treaties.
    A statutory agreement, that is a congressionally approved 
or authorized executive agreement, has historically provided an 
alternative. Such an alternative allows congressional 
involvement in international agreements and provides for 
majority control. But it does not call for the extraordinary 
majority and greater recognition of the interests of 50 
individual states provided by the two-thirds Senate majority 
specified in the Constitution. In some areas, especially trade 
agreements, Congress has chosen this option. In other areas, 
such as arms control, the Senate has insisted that 
international agreements be concluded as treaties.
    The Senate has also demonstrated in other ways an intention 
to maintain the significance of the treaty power. For example, 
it has added provisions or expressed concerns that treaties be 
interpreted in accordance with the common understanding shared 
by the Senate at the time it gave its advice and consent, and 
that they not be reinterpreted without the advice and consent 
of the Senate, as indicated in the section on arms control 
below. Similarly, the Senate has protested when the executive 
branch signed multilateral treaties with a provision 
prohibiting nations from ratifying with reservations, as 
indicated in the section on environmental treaties below.
    This chapter discusses trends in five broad categories of 
treaties: political and security, economic, environmental, 
legal cooperation, and human rights. The focus is on the period 
from 1983 through late 2000, but the study sometimes discusses 
earlier periods for comparative purposes. Similarly, the 
chapter sometimes discusses international agreements other than 
treaties for illustrative purposes.

                  A. Political and Security Agreements

    At the end of World War II, treaties played an important 
part in shaping post-war U.S. foreign policy, especially in the 
political and security field. Peace treaties were concluded 
with Italy, Romania, Bulgaria, Hungary, and Japan. The Charters 
of the United Nations and the Organization of American States 
provided a framework for international cooperation.
    After that time, a decline in the significance of treaties 
submitted to the Senate in the political-security field became 
apparent. In 1972, Senator J. William Fulbright, chairman of 
the Foreign Relations Committee, wrote there had been a 
``steady attrition of the status and significance of treaties 
submitted to the Senate.'' \3\ He compared the importance of 
numerous agreements not submitted to the Senate, such as a 1968 
executive agreement to return the Bonin Islands to Japan, with 
the less significant nature of some agreements that were 
submitted, such as a protocol with Mexico modifying an 
agreement on radio broadcasting.
---------------------------------------------------------------------------
    \3\ Fulbright, J. William. The Crippled Giant: American Foreign 
Policy and Its Domestic Consequences. New York, Random House, 1972. p. 
217.
---------------------------------------------------------------------------
    In more recent years, with the exception of the Panama 
Canal Treaties of 1977 and arms control agreements, few 
important political or defense agreements have been concluded 
as treaties. The United States has entered several major 
agreements in the political-security field, but for various 
reasons Presidents have not submitted them to the Senate as 
treaties. Several have been concluded as executive agreements, 
including the 1973 Paris agreement on the end of the Vietnam 
War, the Afghanistan settlement agreement of April 1988, and 
the political settlement of the Cambodia conflict of October 
1991.\4\ Others have been considered political statements or 
politically but not legally binding agreements, such as the 
U.S.-Russian Charter \5\ or agreements that have been concluded 
in the Conference on Security and Cooperation in Europe 
(CSCE).\6\
---------------------------------------------------------------------------
    \4\ Act of the International Conference on Vietnam, March 2, 1973. 
24 UST 485; TIAS 7568; 935 UNTS 405; Afghanistan Settlement Agreement 
of April 14, 1988, State Department Document Number 88-163; Agreement 
on a Comprehensive Political Settlement of the Cambodia Conflict, 
October 23, 1991, State Department Document Number 91-240; and 
Agreement Concerning the Sovereignty, Independence, Territorial 
Integrity and Inviolability, Neutrality and National Unity of Cambodia, 
October 31, 1991, State Department Document Number 91-243.
    \5\ A Charter for American-Russian Partnership and Friendship, June 
17, 1992. Department of State Dispatch, June 22, 1992. vol. 3, p. 490.
    \6\ Vienna Document 1992 of the Negotiations on Confidence and 
Security-Building Measures, March 4, 1992. Department of State Dispatch 
Supplement, July 1992.
---------------------------------------------------------------------------

               national security and defense commitments

    In 1969, the Senate adopted the National Commitments 
Resolution, which defined a national commitment as ``the use of 
Armed Forces of the United States on foreign territory, or a 
promise to assist a foreign country, government, or people by 
the use of Armed Forces or financial resources of the United 
States, either immediately or upon the happening of certain 
events.'' The resolution expressed the sense ``that a national 
commitment by the United States results only from affirmative 
action taken by the executive and legislative branches of the 
United States Government by means of a treaty, statute, or 
concurrent resolution of both Houses of Congress specifically 
providing for such commitment.'' \7\ Since the initial post-
World War II security treaties, however, security commitments 
have been made almost entirely by means other than treaties.
---------------------------------------------------------------------------
    \7\ S. Res. 85, 91st Cong., 1st Sess., adopted June 25, 1969.
---------------------------------------------------------------------------
    The framework for the current U.S. network of mutual 
security treaties was built between 1947 and 1954, with the 
North Atlantic Treaty, the Inter-American Treaty of Reciprocal 
Assistance, the Southeast Asian Treaty, the ANZUS Pact with 
Australia and New Zealand, and bilateral security treaties with 
the Philippines, South Korea, Japan, and the Republic of China 
(Taiwan). Since that time, no new mutual security commitments 
have been made by treaty, with the possible exception of an 
additional commitment, embodied in the Panama Canal Treaties of 
1979, to protect the Panama Canal until December 31, 1999, and 
to maintain permanently its regime of neutrality. The only 
defense agreement submitted as a treaty in the 1980s, the 
Treaty Between the United States and Iceland to Facilitate 
their Defense Relationship, had a primarily economic purpose: 
superseding U.S. cargo preference laws and equitably sharing 
trade.\8\
---------------------------------------------------------------------------
    \8\ Exec. Rept. 99-7, October 8, 1986. Treaty Doc. 99-31. Signed 
September 24, 1984. Approved by the Senate October 8, 1986.
---------------------------------------------------------------------------
    In 1992, at the request of Congress, President Bush 
submitted to Congress a list of current U.S. security 
commitments, defined by the administration as ``an obligation, 
binding under international law, of the United States to act in 
the common defense in the event of an armed attack on that 
country.'' \9\ The President listed only one U.S. security 
commitment in addition to those concluded from 1947 to 1954 
mentioned above. This was to the Freely Associated States, 
embodied in the Compacts of Free Association with the Republic 
of the Marshall Islands and the Federated States of Micronesia. 
Approved by Congress, the compacts give the United States 
``full authority and responsibility for security and defense 
matters, in or relating to'' those states, including the 
obligation to defend them and their peoples from attacks or 
threats thereof, ``as the United States and its citizens are 
defended.'' \10\
---------------------------------------------------------------------------
    \9\ A Report on United States Security Arrangements and Commitments 
with Other Nations, Submitted to the Congress in accordance with 
Section 1457 of Public Law 101-510, the National Defense Authorization 
Act of 1991, August 17, 1992.
    \10\ Section 311, Public Law 99-239, signed January 14, 1986.
---------------------------------------------------------------------------
    The President also listed a number of U.S. ``security 
arrangements,'' defined as a pledge by the United States to 
some action in the event of a threat to that country's 
security. According to the President, ``security arrangements 
typically oblige the United States to consult with a country in 
the event of a threat to its security. They may appear in 
legally binding agreements, such as treaties or executive 
agreements, or in political documents, such as policy 
declarations by the President, Secretary of State or Secretary 
of Defense.'' \11\
---------------------------------------------------------------------------
    \11\ U.S. President. A Report on United States Security 
Arrangements.
---------------------------------------------------------------------------
    Most of the legally binding security arrangements listed in 
the President's report were prior to the 1980s, and would be 
considered sole executive agreements, namely agreements with 
Israel, Egypt, Pakistan, and Liberia.\12\ One could be 
considered a statutory agreement: in 1981, executive agreements 
committed the United States to the establishment of the 
Multinational Force and Observers (MFO) in the Sinai, subject 
to congressional authorization and appropriations, and Congress 
subsequently authorized the MFO in legislation.\13\
---------------------------------------------------------------------------
    \12\ Memoranda of Agreement (concerning Assurances, Consultations, 
and United States Policy on Matters Related to Middle East Peace, 
concluded on September 1, 1975, with Egypt (32 UST 2150; TIAS 9828) and 
Israel (32 UST 2150; TIAS 9828) and an updated memorandum dated March 
26, 1979, following the Israeli-Egyptian Peace Treaty, 32 UST 214 1; 
TIAS 9825.
    Agreement of Cooperation with Pakistan, March 5, 1969, 10 UST 317; 
TIAS 4190; UNTS 285.
    Agreement of Cooperation with Liberia, July 8, 1959, 10 UST 1598; 
TIAS 4303; 357 UNTS 93.
    \13\ Identical letters of August 3, 1981, from Secretary of State 
Haig to Egyptian Deputy Prime Minister/Foreign Minister and Israeli 
Foreign Minister, August 3, 1981, TIAS 10556 and 10557; Congress 
authorized participation in the Multinational Force and Observers 
Participation Resolution, Public Law 97-132, signed December 29, 1981.
---------------------------------------------------------------------------
    The President listed as security arrangements in political 
documents executive branch declarations of support for Israel, 
the Carter Doctrine on the Persian Gulf of January 23, 1980, 
and the Declaration on the Air Defense of India of July 22, 
1963. He also included two policies embodied in the Eisenhower 
Doctrine on International Communism and the Middle East, and 
the Taiwan Relations Act of 1979.
    Finally, the President reported that a large number of 
defense agreements, including those on training and pre-
positioning of equipment, establish conditions under which the 
United States may undertake activities with or in other 
countries. He said these could not be considered security 
commitments or arrangements because they did not obligate the 
United States to act in defense of another country.
    A survey of lists submitted under the Case Act indicates 
that the United States has concluded large numbers of executive 
agreements concerning defense. Many of these involve routine 
military cooperation and assistance. Often these have been with 
partners in a security treaty such as Japan, Korea, or the NATO 
countries, and could be considered executive agreements 
pursuant to treaty. Some have been with non-treaty states, such 
as Saudi Arabia.\14\
---------------------------------------------------------------------------
    \14\ Agreement extending agreements of May 24 and June 5, 1965, 
relating to the construction or military facilities in Saudi Arabia, 
February 14, 1989, State Department Document Number 89-89.
---------------------------------------------------------------------------
    In addition, some defense agreements are not made public. 
Since these are transmitted to Congress on a classified basis, 
they have not been analyzed for this report. An example would 
be a bilateral defense agreement concluded with Kuwait after 
Operation Desert Storm. According to press reports, on 
September 19, 1991, the United States agreed to pre-position 
equipment in Kuwait that could help defend Kuwait, and Kuwait 
would contribute funds to help pay the cost and allow U.S. 
access to Kuwaiti facilities.\15\ The agreement also provided 
for arms sales, training, and joint military exercises.
---------------------------------------------------------------------------
    \15\ Kuwait to Pay $215 Million for U S. Presence. Defense News, 
June 15, 1992. p. 26. Kuwait Journal: The Runaway Army is Back But 
Standing at Ease. New York Times, January 14, 1992, p. A4.
---------------------------------------------------------------------------
    Since the early 1980s, with the exception of arms control 
treaties, only a few treaties approved by the Senate fell into 
the political or security category. These included treaties 
that dealt with boundaries between South Pacific Islands,\16\ 
the Constitution of the United Nations Industrial Development 
Organization,\17\ an Amendment to the Statute of the 
International Atomic Energy Agency, and approval of the 
Protocols to the North Atlantic Treaty on the Accession of 
Poland, Hungary, and the Czech Republic.\18\
---------------------------------------------------------------------------
    \16\ All four were approved by the Senate on June 21, 1993: Treaty 
of Friendship with Tuvalu (Ex. W, 96-1, signed September 20, 1979); 
Friendship Treaty with Kiribati (Ex. A, 96-2, signed September 20, 
1979); Friendship and Maritime Boundary Treaty with the Cook Islands 
(Ex. P. 96-2, signed September 3, 1980); Treaty with New Zealand on the 
Delimitation of the Maritime Boundary between the United States and 
Tokelau (Treaty Doc. 97-5, signed December 2, 1980).
    \17\ Constitution of the United Nations International Development 
Organization (Treaty Doc. 97-19, adopted April 8, 1979, approved by the 
Senate, with understandings, June 21, 1983).
    \18\ Amendment to the Statute of the International Atomic Energy 
Agency, increasing the board members from nine to ten (Treaty Doc. 99-
7, approved by IAEA September 27, 1984). Approved by the Senate 
September 7, 1988. Protocols to the North Atlantic Treaty of 1949 on 
the Accession of Poland, Hungary, and the Czech Republic (Treaty Doc. 
105-36, Exec. Rept. 105-14, reported with seven declarations and four 
conditions on March 6, 1998. Advice and consent given on April 30, 
1998).
---------------------------------------------------------------------------
    Two other very important treaties of the early 1990s in all 
likelihood would have been concluded as executive agreements 
except for close Senate oversight. Senate action to obtain 
submission of these two treaties, the Final Settlement with 
Respect to Germany and the Maritime Boundary Agreement with the 
Soviet Union, is discussed below.
Treaty on the Final Settlement with Respect to Germany
    The Treaty on the Final Settlement with Respect to Germany, 
signed September 12, 1990,\19\ one of the first major post-Cold 
War treaties, was concluded after the Communist regime in 
Eastern Germany collapsed at the end of 1989, the Berlin Wall 
fell, and reunification of Germany appeared inevitable. Its 
purpose was to terminate the remaining rights in Germany of the 
United States, France, the United Kingdom, and the Soviet 
Union, which had been established at the end of World War II. 
It also confirmed the borders of a united Germany and 
reaffirmed Germany's renunciation of nuclear, biological, and 
chemical weapons.
---------------------------------------------------------------------------
    \19\ Treaty Doc. 101-20. Signed by the Four Powers from the Second 
World War (United States, France, the United Kingdom, and the Soviet 
Union) and the two Germanys (the Federal Republic of Germany and the 
German Democratic Republic) in Moscow.
---------------------------------------------------------------------------
    On July 23, 1990, the Senate Foreign Relations Committee 
held hearings to discuss the future status of Germany and the 
legal instruments that would embody the agreements being 
negotiated. The State Department spokesman said the decision on 
whether the agreement would be submitted to the Senate had not 
yet been made, but indicated a leaning toward an executive 
agreement. He held that the allied rights and other subjects 
that were being negotiated were established in executive 
agreements, not treaties, and were technical in nature; that 
the West German Government wished to avoid a peace treaty that 
might make them appear as a vanquished foe rather than a close 
ally; and that the treaty did not constitute new obligations 
that involved commitments or risks affecting the nation as a 
whole.\20\ Private witnesses stressed the importance of Senate 
advice and consent and therefore of a peace treaty with 
Germany.
---------------------------------------------------------------------------
    \20\ U.S. Congress. Senate. Committee on Foreign Relations. Legal 
Issues Relating to Future Status of Germany. Hearing. July 12, 1990. S. 
Hrg. 101-899, Statement of Michael K. Young, Deputy Legal Advisor, pp. 
2-11.
---------------------------------------------------------------------------
    After the agreement was signed, Senate Majority Leader 
George Mitchell called on the administration to submit the 
treaty to the Senate as soon as possible so the Senate could 
address it prior to adjournment. Noting press reports that 
unidentified administration officials believed the agreement 
might not require Senate approval, Senator Mitchell said:
          Such a view hardly merits serious consideration. It 
        is an erroneous one. It is my judgment that this treaty 
        bears on issues of historic importance, of great 
        significance for our national security as well as for 
        our future political relations with all of Europe, and 
        treaties on such matters absolutely require the 
        participation of the Senate in its treatymaking 
        role.\21\
---------------------------------------------------------------------------
    \21\ Congressional Record, September 18, 1990, p. S13292 (daily 
ed.).

    The President submitted the treaty to the Senate on 
September 26, 1990. Later, Senate Foreign Relations Committee 
Chairman Claiborne Pell said Secretary Baker had asked his 
views, and Senator Pell felt strongly it should be a 
treaty.\22\ On October 5, 1990, the Foreign Relations Committee 
reported the treaty without condition and the Senate approved 
it by a vote of 98-0 on October 9, 1990. Simultaneously, the 
committee also reported and the Senate approved a companion 
measure, a simple resolution expressing the sense of the Senate 
that U.S. ratification not be construed to diminish U.S. 
determination not to recognize the incorporation of the Baltic 
States by the Soviet Union.\23\
---------------------------------------------------------------------------
    \22\ U.S. Congress. Senate. Committee on Foreign Relations. Treaty 
on the Final Settlement with Respect to Germany. Hearing. September 28, 
1990. S. Hrg. 101-1124, p. 38.
    \23\ S. Res. 334, approved by Senate October 9, 1990.
---------------------------------------------------------------------------
Maritime Boundary Agreement with the Soviet Union
    The Agreement with the U.S.S.R. on the Maritime Boundary 
concluded June 1, 1990,\24\ resolved a dispute between the 
United States and the Soviet Union which arose after 1977 when 
both nations established 200-mile fishery and exclusive 
economic zones (EEZs). The formation of these zones revealed 
conflicting interpretations and measurements of the line 
established in the 1867 Convention ceding Alaska.
---------------------------------------------------------------------------
    \24\ Signed June 1, 1990, and submitted to the Senate September 26, 
1990. Treaty Doc. 101-22.
---------------------------------------------------------------------------
    During the negotiations, which lasted 9 years, some 
Senators became concerned that the Department of State was 
considering concluding the agreement as an executive agreement 
on grounds that the 1867 line was a boundary line and the new 
line was just a variation. Senator Jesse Helms contended the 
1867 line was merely a line of demarcation but not a boundary 
under international law, and that boundaries such as the new 
line had always been delimited by treaty. Subsequently, in 1989 
the Senate adopted legislation stating its sense that the 
Department of State should submit to the Senate in treaty form 
all boundary agreements with the Soviet Union. In the 
conference with the House, this was changed to a sense of 
Congress statement ``that all international agreements 
pertaining to the international boundaries of the United States 
should be submitted to the Congress for such consideration as 
is appropriate pursuant to the respective constitutional 
responsibilities of the Senate and the House of 
Representatives.'' \25\ The agreement was submitted to the 
Senate on September 26, 1990, and approved without reservation 
by a vote of 86-6 on September 16, 1991.
---------------------------------------------------------------------------
    \25\ Introduced by Senator Jesse Helms, July 20, 1989, as amendment 
to Foreign Relations Authorization Act, FY 1990 and 1991. Adopted as 
Section 1007. See Exec. Rept. 102-13.
---------------------------------------------------------------------------

                         arms control treaties

    Arms control treaties are the only category of agreement in 
the political-military field that have been concluded primarily 
in treaty form, and have provided the major vehicle in recent 
years for special Senate influence on foreign policy. This may 
be in part because the congressional desire to pass judgment on 
arms control agreements was clear. The Arms Control and 
Disarmament Act provided that no action obligating the United 
States to reduce its armaments could be taken except pursuant 
to the treatymaking power or unless authorized by further 
affirmative legislation by Congress.\26\ The policy statement 
was buttressed by the power Congress has in determining levels 
of armaments and armed forces through defense authorizations 
and appropriations. Presidents have submitted most arms control 
agreements to the Senate as treaties. An exception is the SALT 
I Interim Agreement, signed May 26, 1972, which President Nixon 
submitted as a statutory agreement and Congress approved by 
legislation.\27\
---------------------------------------------------------------------------
    \26\ Section 33, Public Law 87-297, as amended, approved September 
26, 1961.
    \27\ Public Law 92-448, signed September 30, 1972.
---------------------------------------------------------------------------
    Arms control treaties in recent years have generally been 
among the most controversial treaties and those on which the 
Senate has spent the most time. In addition to the Foreign 
Relations Committee, the Armed Services, Intelligence, 
Governmental Affairs, and Judiciary Committees have reviewed 
arms control agreements and sometimes issued reports on them. 
The Senate also established a bipartisan Senate Arms Control 
Observer Group in 1985 to observe and monitor arms control 
negotiations with the Soviet Union. The members served as 
consultants and advisers at negotiations and had frequent 
meetings with executive branch and military officials.\28\ 
During the 1990s, as the United States and Russia stopped 
holding formal arms control negotiations while awaiting the 
ratification and entry into force of existing agreements, the 
Arms Control Observer Group curtailed its activities. In 1999, 
in an effort to reinvigorate the group and restore Senate 
involvement in the arms control process, the Arms Control 
Observer Group was reconstituted as the Senate National 
Security Working Group. The members of this new group were to 
act as observers at negotiations relating to the ``reduction, 
limitation, or control of conventional weapons, weapons of mass 
destruction, or the means of delivery of any such weapons,'' at 
negotiations on missile defenses, and at negotiations on export 
controls.\29\
---------------------------------------------------------------------------
    \28\ A list of the activities of the Senate Arms Control Observer 
Group is contained in the remarks of Senator Lugar in the Congressional 
Record, September 30, 1992, pp. S15715-S15719.
    \29\ This was accomplished through S. Res. 75 on March 25, 1999. 
Congressional Record, March 25, 1999, p. S3565.
---------------------------------------------------------------------------
    The United States and Russia have, in the past decade, 
taken numerous steps to alter their nuclear forces without the 
formal framework provided by treaties. Chief among these were 
the Presidential Nuclear Initiatives of 1991. In late 
September, President George Bush announced that he was 
withdrawing all U.S. non-strategic nuclear weapons from naval 
vessels and overseas deployment, and stated that the United 
States would eliminate many of these weapons.\30\ He called on 
Soviet President Gorbachev to take similar steps. President 
Gorbachev reciprocated in early October.\31\ These initiatives 
led to significant reductions in deployed nuclear forces. 
Although many Members of Congress praised these initiatives 
after they were announced, President Bush neither consulted 
with nor informed the Senate of his intentions prior to 
announcing the initiatives.
---------------------------------------------------------------------------
    \30\ Presidential Initiative on Nuclear Arms. Fact Sheet. The White 
House, Office of the Press Secretary, September 27, 1991.
    \31\ Text of Gorbachev Reply to President's Nuclear Initiative. 
U.S. Embassy, Moscow. October 5, 1991.
---------------------------------------------------------------------------
    In several cases, the United States has chosen to abide by 
treaties without gaining Senate advice and consent to 
ratification. This occurred with the SALT II Treaty, which the 
United States and the Soviet Union signed on June 18, 1979.\32\ 
The Senate never voted on the treaty although the Foreign 
Relations Committee reported it favorably with 2 reservations 
and 18 statements and understandings. In December 1979, after 
the Soviet invasion of Afghanistan, President Carter asked that 
consideration be postponed, and Presidents Reagan and Bush 
never asked for consideration. On May 30, 1982, President 
Reagan declared that the United States would refrain from 
actions that would undercut the SALT agreements as long as the 
Soviet Union showed equal restraint. Congress played a role in 
shaping this policy because many Members had urged President 
Reagan to observe the limits in SALT II. A similar circumstance 
existed with respect to the 1974 Threshold Test Ban Treaty, 
which limited the underground nuclear tests to 150 kilotons. 
President Ford submitted the treaty to the Senate in 1976 but 
the Senate did not approve ratification until 1990, after the 
United States and the Soviet Union had negotiated new 
verification protocols. In the interim, the United States did 
observe the treaty's 150 kiloton limit on nuclear weapons 
tests.
---------------------------------------------------------------------------
    \32\ Ex. Y, 96-1. Submitted to the Senate June 25, 1979, Reported 
November 19, 1979, Exec. Rept. 96-14. Automatically re-referred at end 
of 96th Congress. Resolution to discharge committee submitted, July 15, 
1986, S. Ex. Res. 445. Ordered returned to the President by S. Res. 
267, approved by the Senate on October 12, 2000.
---------------------------------------------------------------------------
     In contrast, during the latter half of the 1990s, Congress 
prohibited the United States from reducing its nuclear forces 
to the levels mandated by the second Strategic Arms Reduction 
Treaty (START II) until that treaty entered into force. 
Beginning in fiscal year 1998, it included a provision in the 
annual defense authorization bills that precluded obligating or 
expending funds for ``retiring or dismantling, or for preparing 
to retire or dismantle'' strategic nuclear weapons that the 
United States would have retained under the START I Treaty but 
eliminated under START II.\33\ The U.S. Senate had consented to 
ratification of START II in January 1996, but the Russian 
parliament did not approve this treaty until April 2000. Many 
in Congress and the Clinton Administration believed that this 
legislation would provide an incentive for Russia to approve 
the treaty by indicating that the United States would not 
reduce its forces until START II entered into force.
---------------------------------------------------------------------------
    \33\ Public Law 105-85, Sec. 1302, as amended by Public Law 106-65 
Sec. 1501.
---------------------------------------------------------------------------
     The United States has also pursued arms control through 
agreements other than treaties. Some ``confidence-building 
measures,'' such as an agreement of September 30, 1971, on 
measures to reduce the risk of outbreak of nuclear war by 
accident, have been concluded as executive agreements. In other 
cases, particularly under the CSCE, agreements have been 
labeled politically, rather than legally, binding. At the 1992 
Helsinki Review Conference, NATO and former Warsaw Pact members 
signed a follow-up conventional arms accord on regulating troop 
levels between the Atlantic and the Urals.\34\ Congress has 
closely monitored action in the CSCE through a joint Commission 
on Security and Cooperation in Europe. Congress also initiated 
an ``arms control'' program with the Soviet Union and Russia 
through its passage of the Nunn-Lugar amendment to the 
implementing act for the Conventional Armed Forces in Europe 
(CFE) Treaty.\35\ This amendment created the Cooperative Threat 
Reduction (CTR) Program, which has provided U.S. assistance to 
Russia and other former Soviet states to help with the safe and 
secure transportation, storage, and elimination of nuclear and 
other weapons and materials. The United States has signed 
numerous Memorandums of Understanding with the recipient 
nations to implement this program, but none has required Senate 
advice and consent. Nonetheless, Congress affects policy and 
expenditures on this program through the annual authorization 
and appropriations process.
---------------------------------------------------------------------------
    \34\ White House statement said, ``President Bush also signed the 
Concluding Act of the Negotiation on Personnel Strength of Conventional 
Armed Forces ion Europe, otherwise known as the CFE-1A agreement * * *. 
The CFE-1A accord places politically binding limits on military 
manpower in Europe.'' CFE Treaty and CFE-1A Agreement. U.S. Department 
of State Dispatch. July 13, 1992, p. 560.
    \35\ Public Law 102-228. Signed on December 12, 1991. Congressional 
Record, November 25, 1991, p. S18003.
---------------------------------------------------------------------------
     The complexity and detail in arms control treaties has 
increased significantly as a result of the desire of the 
legislative and executive branches to assure adequate 
verification. The detailed provisions have often resulted in a 
need for modifications and the development of mechanisms for 
informal amendments, usually negotiated in compliance bodies 
established by the treaties, that are not submitted to the 
Senate.\36\ In addition, agreements on implementation issues 
often concluded as executive agreements that are not submitted 
to the Senate.
---------------------------------------------------------------------------
    \36\ For discussion, see Koplow, David A. When Is an Amendment Not 
an Amendment?: Modifications of Arms Control Agreements Without the 
Senate. University of Chicago Law Review. vol. 59, Summer 1992, pp. 
981-1072.
---------------------------------------------------------------------------
    As in other categories, the Senate has, since the end of 
World War II, approved most arms control treaties without 
formally attaching conditions of any type.\37\ Since the mid-
1980s, however, the Senate has attached significant conditions 
to the major arms control treaties presented to it, namely the 
Intermediate-Range Nuclear Forces (INF) Treaty, the Threshold 
Test Ban Treaty and Protocol, the Treaty on Conventional Armed 
Forces in Europe (CFE), the CFE Flank Agreement, the START I 
and START II Treaties, the Chemical Weapons Convention (CWC), 
and the Open Skies Treaty. Beginning with the INF Treaty, the 
Senate has added a condition concerning reinterpretation of the 
treaty and a declaration that future arms control agreements 
should be concluded as treaties. In addition, the Senate has 
sometimes specified in the resolutions of ratification its 
intention that certain conditions were to be transmitted to the 
other parties and that some were to be clearly approved by the 
other parties, or that some conditions were binding on the 
President and others declared the intention of the Senate.\38\ 
In 1999, the Senate also rejected a treaty when it voted 
against providing its advice and consent to the ratification of 
the Comprehensive Test Ban Treaty (CTBT).
---------------------------------------------------------------------------
    \37\ These included the Antarctic Treaty of December 1, 1959 (Ex. 
B, 86-2, approved August 10, 1960, by a vote of 66-21); the Outer Space 
Treaty of January 27, 1967 (Ex. D, 90-2, approved April 25, 1967, by a 
vote of 88-0); the Nuclear Non-Proliferation Treaty of July 1, 1968 
(Ex. H, 90-2, approved March 13, 1969, by a vote of 81-15); the Seabed 
Arms Control Treaty of February 11, 1971 (Ex. H, 92-1, approved 
February 15, 1972, by a vote of 83-17); the Anti-Ballistic Missile 
(ABM) Treaty (Ex. L, 92-2, approved August 3, 1972, by a vote of 83-
17); and the Environmental Modification Treaty of May 28, 1977 (Ex. K, 
95-1, approved November 28, 1979, by a vote of 98-0).
    \38\ For a more detailed discussion of Senate conditions, see 
Chapter VI.
---------------------------------------------------------------------------
INF Treaty
    The U.S.-Soviet Intermediate-Range Nuclear Forces (INF) 
Treaty, signed December 8, 1987, prohibited the two countries 
from producing, flight-testing, or possessing ground-launched 
ballistic or cruise missiles having a range between 500 and 
5,500 kilometers, and required the destruction or removal of 
some missiles and launchers.\39\ The Senate approved the INF 
Treaty on May 27, 1988, with three ``conditions,'' two 
``declarations,'' and three ``declarations and 
understandings.''
---------------------------------------------------------------------------
    \39\ Submitted to the Senate January 25, 1988, Treaty Doc. 100-11. 
Reported by the Foreign Relations Committee April 14, 1988, Exec. Rept. 
100-15. Approved by the Senate May 27, 1988, by a vote of 93-5.
---------------------------------------------------------------------------
    The primary condition related to the treatymaking power and 
the reinterpretation of treaties. This became an issue during 
consideration of the INF Treaty because of concern that the 
Reagan Administration was reinterpreting the 1972 Anti-
Ballistic Missile (ABM) Treaty to permit development and 
testing of the Strategic Defense Initiative.\40\ Many Senators 
believed that the executive branch could not alter the 
interpretation of a treaty without the advice and consent of 
the Senate and wanted to prevent similar reinterpretations in 
the future. Consequently, the Senate attached a condition, 
sponsored by Senators Byrd and Biden, stating that ``the United 
States shall interpret the Treaty in accordance with the common 
understanding of the Treaty shared by the President and the 
Senate at the time the Senate gave its advice and consent to 
ratification,'' and that the United States would not agree to a 
different interpretation except pursuant to Senate advice and 
consent or the enactment of a statute. It also spelled out the 
bases for the common understanding as (1) the text of the 
treaty and the resolution of ratification, and (2) the 
authoritative representations provided by the administration to 
the Senate in seeking its consent.\41\
---------------------------------------------------------------------------
    \40\ In 1993, the Clinton Administration made clear it had returned 
to the original interpretation. Letter of July 13, 1993, from Acting 
Director of the U.S. Arms Control and Disarmament Agency Thomas Graham, 
Jr., to Senator Pell.
    \41\ For text and discussion, see Chapter VI.
---------------------------------------------------------------------------
    A second condition made ratification subject to the 
President's obtaining the agreement of the Soviet Union that 
certain agreements on definitions and meanings of the treaty 
were of the same force and effect as the treaty. A third 
condition required the President, prior to exchanging 
instruments of ratifications, to certify that the United States 
and the Soviet Union had a specified common understanding 
concerning production of ground-launched ballistic missiles not 
covered by the treaty. The resolution of ratification also 
specified that one declaration and two understandings not 
relating to the subject matter of the treaty were to be 
communicated to the Soviet Union in connection with (and 
therefore not necessarily in) the exchange of ratifications: 
(1) the declaration that respect for human rights was an 
essential factor to ensure the development of friendly 
relations; (2) the understanding that the President should seek 
demonstrable progress by the Soviet Union in its implementation 
of certain documents concerning human rights; and (3) the 
understanding that the United States through the Helsinki 
process would expect full compliance with Soviet commitments in 
the field of human rights.
Threshold Test Ban Treaty and Protocol
    The United States and the Soviet Union signed the Threshold 
Test Ban Treaty in 1974 limiting underground nuclear tests to a 
yield of 150 kilotons.\42\
---------------------------------------------------------------------------
    \42\ Treaty between the United States of America and the Union of 
Soviet Socialist Republics on the Limitation of Underground Weapons 
Tests, signed July 3, 1974 (Treaty Doc. 94-2) and protocol signed July 
1, 1990 (Treaty Doc. 101-19).
---------------------------------------------------------------------------
    President Ford submitted it to the Senate together with the 
Peaceful Nuclear Explosions Treaty in 1976. The Senate Foreign 
Relations Committee ordered the treaties reported in 1977, but 
did not report them so that consideration of the Panama Canal 
treaties could proceed. The Carter Administration did not 
promote the two treaties because it was seeking a comprehensive 
ban of nuclear tests.
    In 1982 the Reagan Administration decided that additional 
verification provisions would be necessary before it would 
endorse the treaties, but the Soviet Union wanted negotiations 
on additional verification provisions to await ratification. In 
1987 President Reagan asked that the Senate consider the 
treaties, subject to the condition that he would not ratify 
them until the new verification protocols were negotiated and 
approved by the Senate. Some Senators objected to this dual 
ratification process. On February 27, 1987, the Foreign 
Relations Committee reported the treaties with a reservation 
that the President not ratify them until he certified that the 
Soviet Union had concluded specified additional agreements, and 
with a declaration supporting negotiations for a comprehensive 
test ban.\43\ The administration did not support the 
committee's recommendations and the Senate did not vote on the 
treaties at that time.
---------------------------------------------------------------------------
    \43\ Exec. Rept. 100-1.
---------------------------------------------------------------------------
    The United States and the Soviet Union signed the 
additional verification protocols on June 1, 1990; President 
Bush submitted them to the Senate on June 28, 1990. On 
September 14, 1990, the Foreign Relations Committee reported 
the Threshold Test Ban Treaty and Protocol subject to a 
declaration advocating five safeguards originally propounded by 
the Joint Chiefs of Staff but modified by the committee, and a 
declaration promoting continued efforts to achieve a verifiable 
comprehensive test ban.\44\
---------------------------------------------------------------------------
    \44\ Exec. Rept. 101-31.
---------------------------------------------------------------------------
    Future amendments to the agreements were an issue of 
concern during the committee's debate. In its report the 
Foreign Relations Committee reviewed concerns that Article XI 
of the protocol, which allows parties to amend the protocol 
through agreement in a Bilateral Consultative Commission, 
should not permit substantive changes without Senate approval. 
The committee obtained assurances from the Director of the Arms 
Control and Disarmament Agency that any substantive change that 
would affect the basic aims of the treaty would have to be made 
by means of an amendment, and that the executive branch would 
notify the committee on any changes prior to their becoming 
binding. The Senate approved both treaties and the new 
protocols on September 25, 1990.
CFE Treaty
    The Treaty on Conventional Armed Forces in Europe (CFE) was 
signed on November 19, 1990, by 16 members of NATO and 6 
members of the former Warsaw Pact including the Soviet 
Union.\45\ CFE established equal ceilings for each group of 
states in certain armaments categories and limited the forces 
of individual countries. The Senate approved the treaty on 
November 25, 1991, subject to six conditions and four 
declarations. The resolution of ratification explicitly stated 
that the conditions ``shall be binding upon the Executive'' and 
that the declarations ``express the intent of the Senate.''
---------------------------------------------------------------------------
    \45\ Treaty Doc. 102-8, submitted July 9, 1991. Reported November 
19, 1991, with five conditions, four declarations, Exec. Rept. 102-22. 
Approved by Senate, with amendments to resolution of ratification, 
November 25, 1991, by vote of 90-4.
---------------------------------------------------------------------------
    One of the conditions dealt with new states that might be 
formed from the Soviet Union. When the treaty was submitted to 
the Senate on July 9, 1991, the Soviet Union still existed. 
After a coup attempt against Soviet President Gorbachev in 
August 1991, the Soviet Union began to dissolve into a number 
of independent states. During its consideration of the treaty, 
the Senate found the situation rapidly changing and obligations 
of successor states of the Soviet Union became a major issue. 
The Senate added a condition to the resolution of ratification 
stating that if, in the future, a new state was formed in the 
area of application: (A) the President was to consult with the 
Senate on the effect on the treaty; (B) if the President 
determined that a new state's holdings were of such military 
significance as to constitute a changed circumstance and he 
decided not to invoke the withdrawal right, he was to request a 
conference to assess the viability of the treaty; and (C) if he 
made such a decision, he was to submit for the Senate's advice 
and consent any major change in the obligations. If the states 
in such a conference did not agree on a change in obligations, 
the President was to seek a Senate resolution of support for 
continued adherence. The Senate also added a declaration urging 
the President to seek the accession of any new state that might 
be formed in the area.
    In the CFE resolution of ratification, the Senate made two 
declarations dealing with the treatymaking power. One affirmed 
``the applicability to all treaties of the constitutionally 
based principles of the treaty interpretation set forth'' in 
the INF condition. Another declared the Senate intent to 
approve international agreements obligating the United States 
to reduce or limit the armed forces in a militarily significant 
manner only pursuant to the treaty power.
CFE Flank Agreement
    As the 1995 deadline for CFE reductions approached, it 
became evident that Russia would not meet the treaty's 
requirements. The outbreak of armed ethnic conflict in and 
around the Caucasus, most notably in Chechnya, led Russia to 
claim it needed to deploy equipment in excess of treaty limits 
in the ``flank zones.'' The parties to the CFE Treaty signed a 
flank agreement on May 31, 1996. This agreement removes several 
administrative districts from the old ``flank zone'' and, thus, 
permits the equipment ceilings for the flank zones to apply to 
a smaller area. To balance these adjustments, reporting 
requirements were enhanced, inspection rights in the zone 
increased, and district ceilings were placed on armored combat 
vehicles to prevent their concentration.
    The Clinton Administration initially did not plan to submit 
the flank agreement to the Senate for its advice and consent to 
ratification because it did not consider it to be an amendment 
to the treaty. However, after the Senate leadership pressured 
the administration and linked its submission to approval of the 
CWC, the administration submitted the CFE Flank Agreement to 
the Senate on April 7, 1997.\46\ The Foreign Relations 
Committee and the full Senate both approved the resolution of 
ratification by unanimous votes.\47\
---------------------------------------------------------------------------
    \46\ Treaty Doc. 105-5, submitted to the Senate April 7, 1997. 
Approved by the Senate May 14, 1997.
    \47\ Congressional Record, May 14, 1997. p. S4475.
---------------------------------------------------------------------------
    The resolution of ratification contains 14 conditions. Two 
of these conditions address monitoring and compliance issues; 
two state that any further modifications to the treaty or the 
geographical boundaries of the flank zones must be submitted to 
the Senate for advice and consent. Several of the conditions 
demonstrate the Senate's concerns regarding the continued 
stationing of Russian troops on the territories of other newly 
independent states and with the potential for political and 
economic coercion as a result of those troop deployments. As 
with other resolutions approved since 1987, this one also 
contains the Biden-Byrd condition on treaty interpretation, 
which was initially included in the resolution of ratification 
for the INF Treaty.
    The resolution of ratification for the CFE Flank Agreement 
contained one particularly contentious condition. In condition 
9, the Senate stated that the United States could not deposit 
the instruments of ratification for the CFE Flank Agreement 
until the President certified to the Senate that he would 
submit the Memorandum of Understanding on Succession (MOUS) to 
the 1972 ABM Treaty to the Senate for its advice and consent. 
This agreement named Russia, Ukraine, Belarus, and Kazakhstan 
as the successors to the Soviet Union for the ABM Treaty. The 
administration claimed that this agreement was not an amendment 
to the treaty, but many Senators disagreed, and some wanted to 
debate and defeat the MOUS as part of their effort to nullify 
the ABM Treaty. The administration and many Democratic Senators 
objected to condition 9, primarily because it was not germane 
to the CFE Flank Agreement, but they realized that they did not 
have the votes to remove it from the resolution of 
ratification.
START I Treaty
    The first treaty between the United States of America and 
the Soviet Union on the Reduction and Limitation of Strategic 
Offensive Arms (the START I Treaty) was signed by U.S. 
President Bush and Soviet President Mikhail Gorbachev on July 
31, 1991.\48\ Six months later, the Soviet Union disintegrated 
into a number of independent states. On May 23, 1992, the 
United States and Belarus, Kazakhstan, Russia, and Ukraine 
signed a protocol that named those four nations, each of which 
had Soviet nuclear weapons on its territory, as the successors 
to the Soviet Union for the START I Treaty. The three non-
Russian states also agreed to return the nuclear warheads on 
their territories to Russia. The President submitted the 
protocol to the Senate on June 19, 1992, as an amendment to and 
integral part of the START I Treaty. President Bush said the 
protocol would ensure that only one state emerging from the 
former Soviet Union would have nuclear weapons, and that all 
the former states of the Soviet Union that have nuclear weapons 
would be bound by the START I Treaty.
---------------------------------------------------------------------------
    \48\ Treaty Doc. 102-20, submitted to the Senate November 25, 1991. 
Protocol (Treaty Doc. 102-32) submitted June 19, 1992. Treaty Doc. 102-
20 reported September 18, 1992, with Treaty Doc. 102-32. Exec. Rept. 
102-53. Approved by Senate October 1, 1992.
---------------------------------------------------------------------------
    In the resolution of ratification, the Senate adopted eight 
conditions designated as binding upon the President. The 
conditions included that President Bush notify Belarus, 
Kazakhstan, and Ukraine that letters obligating them to 
eliminate all nuclear weapons and strategic offensive arms from 
their territory within 7 years would be legally binding. The 
President was also directed to communicate to the three states 
that the United States would regard as inconsistent with the 
START I Treaty any actions inconsistent with their obligations 
to adhere to the Non-Proliferation Treaty in the shortest 
possible time.
    Concerning implementation arrangements, the Senate made it 
a condition that failure to reach agreement would require the 
President to consult with the Senate. In the event Belarus, 
Kazakhstan, and Ukraine did not eliminate nuclear weapons and 
strategic offensive armaments in their territory within 7 
years, it was a condition that the President should consult 
with the Senate and submit any change in obligations for advice 
and consent of the Senate or, if the President decided not to 
invoke the withdrawal right, seek a Senate resolution of 
support. Another condition required the President to submit a 
report on compliance with specified arms control treaties 
within 180 days of advice and consent. A final condition, known 
as the Biden condition, required that the President ``seek an 
appropriate arrangement, including the use of reciprocal 
measures, to monitor (A) the numbers of nuclear stockpile 
weapons on the territory of the parties to this treaty and (B) 
the location and inventory of facilities on the territory of 
the parties to this treaty capable of producing or processing 
significant quantities of fissile materials.'' This condition 
reflected growing concern about the safety and security of 
former Soviet nuclear weapons and materials. The Senate Armed 
Services Committee, in its report on START I, objected to this 
condition, in part because it doubted the analysis supporting 
it and in part because it feared that efforts to negotiate such 
an arrangement could slow the negotiations on the new START II 
Treaty. The committee recommended that the Biden condition 
either be eliminated from the START I resolution of 
ratification, or that it be cast as a non-binding ``sense of 
the Senate'' recommendation.\49\ The Senate Foreign Relations 
Committee did not accept this recommendation. However, it 
indicated, in its report, that this requirement would not apply 
to the START II Treaty because such a requirement would likely 
delay negotiations.\50\
---------------------------------------------------------------------------
    \49\ United States Senate. Committee on Armed Services. Military 
Implications of the START I Treaty and the June 17, 1992 U.S.-Russian 
Joint Understanding on Further Reductions in Strategic Offensive Arms. 
Report 102-124. September 18, 1992. pp 10-14.
    \50\ Congressional Record. September 28, 1992, p. S15441.
---------------------------------------------------------------------------
    The resolution of ratification also included six 
declarations designated as expressing the intent of the Senate. 
Among these, one affirmed the applicability to all treaties of 
the condition on treaty interpretation in the INF Treaty. 
Another declared again the Senate position that it would 
consider for approval accords obligating the United States to 
reduce or limit its arms in a militarily significant manner 
``only pursuant to the treaty power set forth in Article II, 
Section 2, Clause 2 of the Constitution.''
START II
    The United States and Russia signed the second Strategic 
Arms Reduction Treaty (START II), on January 3, 1993. START II 
limits each of the parties to 3,500 warheads deployed on their 
strategic offensive nuclear weapons. It bans all land-based 
missiles with multiple warheads (MIRVed ICBMs) and limits the 
number of warheads that could be deployed on submarine-based 
ballistic missiles (SLBMs). In its original form, the two 
nations were to reduce their forces to the START II limits by 
January 1, 2003. However, in September 1997, the United States 
and Russia signed a protocol that would extend this timeline 
until the end of 2007.
    President Bush submitted the START II Treaty to the Senate 
on January 12, 1993.\51\ The Senate Foreign Relations Committee 
held hearings on the treaty in 1993, but did not report it to 
the Senate because the START I Treaty did not enter into force 
until December 1994. The committee held additional hearings in 
January, February, and March 1995, after the Republican Party 
gained a majority in the Senate. The committee delayed its vote 
on the resolution of ratification for most of 1995, while 
Senator Helms, the chairman, and the Clinton Administration 
sought to resolve a dispute over reorganization of the State 
Department. The committee approved the resolution of 
ratification, by a vote of 18-0 in December 1995 and the full 
Senate offered its advice and consent to ratification, by a 
vote of 87-4 on January 26, 1996. The resolution of 
ratification contains 8 conditions and 12 declarations.\52\
---------------------------------------------------------------------------
    \51\ Treaty Doc. 103-1, submitted to the Senate January 15, 1993. 
Reported by the Foreign Relations Committee December 15, 1995, Exec. 
Rept. 104-10. Approved by the Senate, January 26, 1996.
    \52\ Congressional Record. January 26, 1996. pp. S461-S463.
---------------------------------------------------------------------------
    By 1995, the debate over START II had become enmeshed in 
the debate over ballistic missile defenses and the ABM Treaty. 
This is evident in the resolution of ratification. The second 
condition states that U.S. ratification of the START II Treaty 
does not obligate the United States to accept any modification, 
change in scope, or extension of the ABM Treaty. Also, the 10th 
declaration discusses the nature of deterrence, noting that 
deterrence based on offensive retaliation has become outdated 
and that ballistic missile defense can contribute to a stable 
deterrent relationship. The conditions and declarations also 
address the Senate's concerns about compliance with START II 
and, in the eighth declaration, the resolution refers to the 
``clear past pattern of Soviet noncompliance with arms control 
agreements and continued cases of noncompliance by the Russian 
Federation * * *'' The resolution also displays the Senate's 
concerns about the Clinton Administration's stewardship of U.S. 
nuclear forces. The seventh condition states that the treaty is 
not binding on the United States until it enters into force and 
that the President must consult with the Senate if he wants to 
reduce U.S. forces below START II levels. The 12th declaration 
states that the United States is committed to maintaining its 
nuclear weapons infrastructure and that the United States 
reserves the right to resume nuclear testing to address warhead 
design flaws or aging problems. Finally, the resolution 
contains two declarations that have become standard in arms 
control--one affirmed the applicability to all treaties of the 
condition on treaty interpretation in the INF Treaty. Another 
declared again the Senate position that it would consider for 
approval accords obligating the United States to reduce or 
limit its arms in a militarily significant manner ``only 
pursuant to the treaty power set forth in Article II, Section 
2, Clause 2 of the Constitution.''
Open Skies Treaty
    The Treaty on Open Skies was signed in Helsinki on March 
24, 1992, by 25 nations originally including 16 members of 
NATO, 5 Eastern European members, and 4 former Soviet 
republics.\53\ Its purpose was to enhance military openness by 
providing each party the right to overfly the territory of 
other parties in unarmed observation aircraft. After hearings 
on the treaty and recommendations from the Senate Select 
Committee on Intelligence and Committee on Armed Services, the 
Foreign Relations Committee recommended advice and consent with 
two conditions to be binding on the President. First, if a 
party sought agreement within the Open Skies Consultative 
Commission for the introduction of additional categories or 
improvement of sensors, the President was to notify the Senate 
and not agree to the improvement until at least 30 days after 
the notification. Second, since the United States might not 
need many overflights because of its observation satellite 
capabilities, the President was to submit a report to the 
Senate, after the treaty had been in force 1 year, assessing 
the number of observation flights necessary. In addition, the 
committee recommended a declaration reaffirming the principles 
of treaty interpretation. The Senate gave its advice and 
consent to the treaty on August 6, 1993.\54\
---------------------------------------------------------------------------
    \53\ Treaty Doc. 102-37, submitted to the Senate August 12, 1992. 
Reported by the Foreign Relations Committee August 2, 1993, Exec. Rept. 
103-5. Approved by Senate, August 6, 1993.
    \54\ Congressional Record, August 6, 1993, p. S10800 (daily ed.).
---------------------------------------------------------------------------
Chemical Weapons Convention
    The Chemical Weapons Convention (CWC) opened for signature 
in January 1993.\55\ Since then, 170 nations have signed it and 
129 nations have ratified it. The convention entered into force 
on April 29, 1997. The CWC is designed to promote the global 
elimination of chemical weapons. It bans the development, 
production, transfer, stockpiling, and use of chemical and 
toxin weapons, mandates the destruction of all chemical weapons 
production facilities, and seeks to control the production and 
international transfer of the key chemical compounds of these 
weapons.
---------------------------------------------------------------------------
    \55\ Treaty Doc. 103-21, submitted to the Senate on November 23, 
1993.
---------------------------------------------------------------------------
    The Senate Foreign Relations, Armed Services, Intelligence, 
and Judiciary Committees held a total of 13 hearings on the CWC 
during the 103d, 104th, and 105th Congresses. Under a unanimous 
consent agreement, the CWC resolution of ratification was to 
have been brought to the Senate floor in mid-September 1996. 
However, uncertain of sufficient votes to ensure passage, its 
supporters postponed its consideration until after the 1996 
Presidential election. President Clinton vowed to press for CWC 
ratification in early 1997, but Senator Jesse Helms, chair of 
the Foreign Relations Committee, opposed the CWC and stated 
that it would not be a high priority for his committee. 
Furthermore, Senator Helms and the Senate's leadership sought 
assurances that other arms control agreements, such as the CFE 
Flank Agreement and the Agreed Statements on Demarcation to the 
ABM Treaty, would be brought before the Senate for its advice 
and consent. The administration objected to this linkage, but 
agreed to submit the agreements so that the Senate could 
address the CWC before it entered into force.
    After extensive negotiations between the White House and 
key Senators, and within the Senate itself, a unanimous consent 
agreement was reached to bring the CWC resolution of 
ratification to the Senate floor on April 23, 1997.\56\ The 
resolution contained 33 conditions, 5 of which were struck by 
roll call votes during floor debate. The 28 remaining 
conditions address a number of concerns raised during the 
debate over the CWC. These include the costs of treaty 
implementation and the U.S. financial contribution to the CWC's 
compliance organization, verification issues and the U.S. 
ability to detect and respond to noncompliance, and measures to 
manage the burden on U.S. industry as a result of CWC 
inspection and reporting requirements. The resolution of 
ratification also contains the two conditions that have become 
standard in arms control--the Biden-Byrd condition on treaty 
interpretation from the INF Treaty and the condition that 
reaffirms the Senate's role in regarding arms control treaties.
---------------------------------------------------------------------------
    \56\ S. Res. 75. Congressional Record, April 24, 1997. pp. S3651-
S3657.
---------------------------------------------------------------------------
Comprehensive Test Ban Treaty
    The Comprehensive Test Ban Treaty (CTBT) opened for 
signature at the United Nations on September 24, 1996. As of 
December 5, 2000, 160 nations have signed it and 69 have 
ratified it. The key obligation in the CTBT is in Article I: 
``Each State Party undertakes not to carry out any nuclear 
weapon test explosion or any other nuclear explosion * * *.'' 
Much of the treaty establishes organizations and procedures for 
monitoring compliance with this obligation. Entry into force 
requires ratification by 44 specified nations, essentially 
those with a nuclear reactor. Of the 44, all have signed but 
India, Pakistan, and North Korea, and 30 have ratified, 
including Britain, France, and Russia. On October 13, 1999, the 
Senate rejected the resolution of ratification, 51 against, 48 
for, and 1 present, making the United States the only nation to 
have rejected the treaty.
    The procedure by which the treaty came to a vote was 
unusual, and influenced its consideration. President Clinton 
submitted the treaty to the Senate for its advice and consent 
to ratification on September 22, 1997.\57\ In October 1997, the 
Senate Governmental Affairs Committee and the Senate 
Appropriations Committee held hearings on the U.S. ability to 
maintain nuclear weapons under a CTBT. As the committee of 
jurisdiction, however, the Senate Foreign Relations Committee 
had to report out the treaty or be discharged from 
consideration. In his State of the Union Addresses of 1998 and 
1999, President Clinton called for the Senate to approve the 
treaty, but Senate Foreign Relations Committee Chairman Jesse 
Helms demurred. He wrote to the President in January 1998 that 
``the CTBT is very low on the Committee's list of priorities,'' 
and stated that ``I will be prepared to schedule Committee 
consideration of the CTBT only after the Senate has had the 
opportunity to consider and vote on the Kyoto Protocol and the 
amendments to the ABM Treaty.'' \58\ In 1998 and most of 1999, 
the Senate Foreign Relations Committee did not hold hearings 
dedicated to the treaty and did not report it out of committee.
---------------------------------------------------------------------------
    \57\ U.S. Congress. Senate. Comprehensive Nuclear Test-Ban Treaty: 
Message from the President of the United States Transmitting 
Comprehensive Nuclear Test-Ban Treaty. * * * 105th Cong., 1st Sess., 
Treaty Doc. 105-28. Washington, U.S. Government Printing Office, 1997, 
230 p.
    \58\ Letter dated January 21, 1998, reprinted in Senator Jesse 
Helms, ``Comprehensive Test Ban Treaty,'' U.S. Congress. Congressional 
Record. September 30, 1999, S11677-S11678.
---------------------------------------------------------------------------
    Senate Democrats called repeatedly for the Senate Foreign 
Relations Committee to consider the treaty and for the Senate 
to vote on it. In the summer of 1999, they escalated their 
pressure by threatening a filibuster and by planning to press 
for hearings and a vote by March 31, 2000.\59\ Meanwhile, 
Senators Kyl and Coverdell had arranged for briefings of other 
Republican Senators to make the case against the treaty, and by 
September 30 had lined up 42 votes against it.\60\ On that day, 
Senator Lott responded to demands to consider the treaty. He 
asked for unanimous consent to discharge the Senate Foreign 
Relations Committee from further consideration of the treaty on 
October 6, to begin consideration of the treaty on that day, 
with a total of 10 hours of debate, and then to vote on the 
resolution of ratification. Senator Daschle objected to the 
request on grounds that it proposed to hold the vote too 
quickly, did not allow enough time for debate, and assumed the 
treaty would be defeated.\61\ Under the final agreement, the 
Senate began consideration of the treaty on October 8. Each 
leader was permitted one amendment to the resolution of 
ratification, with 8 hours of debate permitted on the two 
amendments and 14 hours on the resolution of ratification. The 
Senate would then proceed to a vote.\62\
---------------------------------------------------------------------------
    \59\ On September 8, Senator Byron Dorgan said, ``If [Senator Lott] 
and others decide [the treaty] will not come to the floor, I intend to 
plant myself on the floor like a potted plant and object * * * to other 
routine business of the Senate'' until the treaty is brought to a 
debate and vote. Congressional Record. September 8, 1999, S10541. 
Senator Joseph Biden, Senate Foreign Relations Committee ranking 
minority member, reportedly planned to offer a resolution proposing 
hearings on the CTBT in 1999 and a vote by March 31, 2000. See Richard 
Lowry, ``Test-Ban Ban,'' National Review, November 8, 1999, as 
reprinted in U.S. Congress. Congressional Record, November 10, 1999, 
S14579
    \60\ Ibid., S14578.
    \61\ Congressional Record, September 30, 1999, S11666-S11667.
    \62\ Senator Robert Byrd, ``The Comprehensive Test Ban Treaty,'' in 
U.S. Congress. Congressional Record, October 7, 1999, S12257.
---------------------------------------------------------------------------
    The resolution of ratification proposed by the majority was 
simply ``[t]hat the Senate advise and consent'' to ratifying 
the treaty.\63\ The minority resolution included a number of 
conditions binding upon the President, such as on nuclear 
weapons stockpile stewardship, maintenance of nuclear weapons 
laboratories and nuclear testing capability, and 
withdrawal.\64\ These were similar to the ``safeguards'' set 
forth by the President in August 1995.\65\
---------------------------------------------------------------------------
    \63\ Congressional Record, October 8, 1999, S12257.
    \64\ Congressional Record, October 12, 1999, S12427.
    \65\ U.S. White House. Office of the Press Secretary. ``Fact Sheet: 
Comprehensive Test Ban Treaty Safeguards,'' August 11, 1995, 1 p.
---------------------------------------------------------------------------
    By the time the debate began, all recognized that the 
treaty would be defeated. Many Democrats feared that the defeat 
would be harmful, and some from both parties were troubled by 
the hasty consideration and vote. Accordingly, Senators 
Moynihan and Warner gathered 62 signatures--24 Republicans and 
38 Democrats--for a letter to Senators Lott and Daschle 
requesting that the vote be deferred.\66\ Similarly, President 
Clinton asked Senator Lott to defer consideration.\67\ But some 
objected to rescinding the agreement, so the vote was held.
---------------------------------------------------------------------------
    \66\ Congressional Record, October 13, 1999, S12548-S12549.
    \67\ Congressional Record, October 12, 1999, S12333.
---------------------------------------------------------------------------
    The Senate debated the CTBT on October 8, 12, and 13. 
Several hearings were held the week before, by the Foreign 
Relations Committee on October 7, and by the Armed Services 
Committee on October 5, 6, and 7. During the debate, Senators 
debated whether the treaty would advance nuclear 
nonproliferation objectives, whether other nations could 
conduct clandestine tests of military significance, and whether 
the United States could maintain its nuclear deterrent without 
nuclear tests. Some also raised the question of how the 
international community might react to U.S. rejection of the 
treaty, and whether rejection would undermine the U.S. 
leadership role in the world and lead to the unraveling of 
other arms control agreements.
    The Senate debate also addressed the question of whether 
the Senate had given the treaty adequate consideration in the 
form of hearings and floor debate. Senator Helms stated that 
the CTBT was ``extensively discussed'' in 14 Senate Foreign 
Relations Committee hearings in 1998 and 1999,\68\ while 
Senator Daschle presented a list, ``Senate Consideration of 
Major Arms Control and Security Treaties--1972-1999,'' showing, 
on average, that other such agreements received much more 
consideration than did the CTBT.\69\ Senator Byrd stated that 
the process for considering this treaty was inadequate. ``To 
accept or reject this treaty on the basis of such flimsy 
understanding of the details as most of us possess,'' he said, 
``is a blot on the integrity of the Senate, and a disservice to 
the Nation.'' As a result, he declared he would vote 
``present'' for the first time in his 41 years as a 
Senator.\70\
---------------------------------------------------------------------------
    \68\ Senator Jesse Helms, ``Comprehensive Test Ban Treaty,'' in 
U.S. Congress. Congressional Record, September 30, 1999, S11670. This 
reference includes a list of the hearings.
    \69\ Senator Daschle, colloquy on the CTBT, in U.S. Congress. 
Congressional Record, October 13, 1999, S12507.
    \70\ Senator Byrd, colloquy on the CTBT, in U.S. Congress. 
Congressional Record, October 13, 1999, S12523-S12524.
---------------------------------------------------------------------------
    Regarding the status of the U.S. obligation in the wake of 
the Senate's rejection of the treaty, Secretary of State 
Madeleine Albright said in October 1999, that the United States 
will ``live up to the conditions of the treaty.'' \71\ Senator 
Lott countered, ``If the Senate does not consent to 
ratification of a treaty * * * it has no status for the United 
States in international law. In fact, the Senate vote serves to 
release the United States from any possible obligations as a 
signatory of the negotiated text of the treaty.'' \72\
---------------------------------------------------------------------------
    \71\ William Mann, ``U.S. Will Honor Its Treaty Commitments, 
Albright Says,'' Associated Press (newswire), October 18, 1999.
    \72\ Bill Gertz, ``Lott Hits Clinton's Stance on Nuke Pact,'' 
Washington Times, November 3, 1999: 1. The quotation is from a 
statement Senator Lott released to that newspaper.
---------------------------------------------------------------------------

                          B. Economic Treaties

    Economic treaties and agreements have always been a major 
component of U.S. relations with foreign countries, and the end 
of the Cold War has increased their significance. This section 
discusses four categories of economic treaties: friendship, 
commerce, and navigation (FCN); investment; consular; and tax 
treaties.
    An important category, reciprocal trade agreements, is not 
discussed in detail here. Although they are legally binding 
treaties under international law, these trade agreements are 
not treaties in the U.S. terminology, that is, agreements 
submitted to the Senate for its advice and consent. Instead, 
they have been concluded as statutory or congressional-
executive agreements. In accordance with legislative 
directives, major trade agreements have been submitted to 
Congress for approval or enactment by legislation requiring 
approval of both Chambers and providing for expedited or ``fast 
track'' procedures. Others are concluded as executive 
agreements that have been authorized by Congress. Within the 
Senate, while all treaties are in the jurisdiction of the 
Foreign Relations Committee, reciprocal trade agreements are in 
the jurisdiction of the Finance Committee.\73\
---------------------------------------------------------------------------
    \73\ Rule XXV. Standing Rules of the Senate, Revised to July 2, 
1992. S. Doc. 102-25, July 27, 1992. For additional information, see 
Grimmett, Jeanne J. Why Certain Trade Agreements are Approved as 
Congressional-Executive Agreements Rather Than as Treaties. CRS Report 
97-896 A, updated October 8, 1999. Holliday, George D. Fast Track 
Implementation of Trade Agreements: The Debate over Reauthorization, 
CRS Report RS20039, updated January 29, 1999. Holliday, George D. The 
Changing Role of Congress in Trade Negotiations. CRS Report 92-231 E, 
February 14, 1992. Sek, Lenore. Congressional Trade Negotiating 
Authority. In Congress and Foreign Policy, 1991. House Foreign Affairs 
Committee Print, 1992. pp. 103-117.
---------------------------------------------------------------------------

             friendship, commerce, and navigation treaties

    Friendship, commerce, and navigation (FCN) treaties were 
among the earliest formal economic treaties and set the 
framework for U.S. trade and investment relations with foreign 
countries. Their importance for trade obligations decreased 
after 1948 when the United States became a contracting party to 
the General Agreement on Tariffs and Trade (GATT) and U.S. 
trade relations began to be set through multilateral trade 
agreements. The United States entered into 21 FCN treaties 
between 1946 and 1966, however, focusing during this period on 
the protection of U.S. foreign investment, mainly in developed 
countries.\74\
---------------------------------------------------------------------------
    \74\ See generally Vandevelde, ``The Bilateral Investment Treaty 
Program of the United States,'' 2 Cornell Int'l L. J. 201, 207-208 
(1988).
---------------------------------------------------------------------------
    In recent years some of the older FCN treaties have been 
amended by protocols. Recent examples were the Protocols to the 
Treaties of Friendship, Commerce, and Navigation with Finland 
and Ireland.\75\ The protocols established the legal basis by 
which the United States could issue investor visas to qualified 
nationals, a benefit provided in most FCN treaties. The 
Immigration and Nationality Act permits issuance of an investor 
visa only to a nonimmigrant who is ``entitled to enter the 
United States under and in pursuance of the provisions of a 
treaty of commerce and navigation between the United States and 
the foreign state of which he is a national * * *.'' \76\
---------------------------------------------------------------------------
    \75\ Protocol to the Treaty of Friendship, Commerce, and Navigation 
with Finland of February 13, 1934, as modified by the protocol of 
December 4, 1952, signed July 1, 1991. Submitted to the Senate July 30, 
1992. Treaty Doc. 102-34. Reported August 6, 1992, Exec. Rept. 102-49, 
approved by Senate August 11, 1992. Protocol to the Treaty of 
Friendship, Commerce, and Navigation with Ireland of January 21, 1950, 
signed June 24, 1992. Submitted to the Senate July 23, 1992. Treaty 
Doc. 102-35. Reported August 6, 1992, Exec. Rept. 102-50. Approved by 
Senate August 11, 1992.
    \76\ 8 U.S.C. 1101(a)(15)(E)(ii).
---------------------------------------------------------------------------

                          investment treaties

    Investment treaties are a successor to the Friendship, 
Commerce, and Navigation (FCN) Treaty Series. To improve 
investor protection, primarily in developing countries with 
which the United States had not concluded FCN treaties, the 
United States negotiated a series of bilateral investment 
treaties (BITs) under a program begun in 1981.\77\ Before 
beginning the negotiations, the State Department developed a 
model treaty that has continued to evolve. The general 
objectives of the program are to facilitate the free flow of 
investment, prohibit practices that inhibit investment, and 
codify rules on investment and dispute settlement.
---------------------------------------------------------------------------
    \77\ After several European countries had met success with 
bilateral investment agreements, in 1977 Senators Claiborne Pell and 
Frank Church wrote letters to the State Department urging the United 
States to undertake a similar program, and during the Carter 
Administration efforts began to develop a model treaty. Negotiations on 
treaties with specific countries began in 1982, and as of August 1992 
the United States had signed nineteen BITs. Statement of Kenneth J. 
Vandevelde in: U.S. Congress. Senate. Committee on Foreign Relations. 
Bilateral Investment Treaties with the Czech and Slovak Federal 
Republic, the People's Republic of the Congo, the Russian Federation, 
Sri Lanka, and Tunisia, and Two Protocols to Treaties with Finland and 
Ireland. Hearing. August 4, 1992. S. Hrg. 102-795, pp. 66-67.
---------------------------------------------------------------------------
    The model treaty serves as a criterion against which the 
Senate may judge specific investment treaties.\78\ Specific 
objectives include:
---------------------------------------------------------------------------
    \78\ The U.S. Model Bilateral Investment Treaty, as of February 
1992, and an explanation may be found in: U.S. Congress. Senate. 
Committee on Foreign Relations. Bilateral Investment Treaties with the 
Czech and Slovak Federal Republic, the People's Republic of the Congo, 
the Russian Federation, Sri Lanka, and Tunisia, and Two Protocols to 
Treaties with Finland and Ireland. Hearing. August 4, 1992. S. Hrg. 
102-795, pp. 56-66. A 1994 Model Bilateral Investment Treaty has since 
been developed; the BIT with Georgia was the first treaty to be signed 
using this model. Treaty Doc. 104-13.
---------------------------------------------------------------------------
          1. The better of either national or most-favored-
        nation treatment for each party, subject to specified 
        exceptions;
          2. Application of international law standards to the 
        expropriation of investments, permitting expropriation 
        only for a public purpose and requiring the payment of 
        prompt and fair compensation;
          3. The free transfer of funds associated with an 
        investment into and out of the host country;
          4. An investor-to-state dispute mechanism that allows 
        U.S. investors access to binding arbitration with the 
        host state without the involvement of the U.S. 
        Government;
          5. A prohibition on the imposition of performance 
        requirements, i.e., commitments to use local products 
        or to export goods;
          6. The right of companies to hire managers of their 
        choice, regardless of nationality.

    The United States concluded and the Senate approved 
approximately a dozen BITs in the late 1980s. With the 
emergence of new governments in Eastern Europe and the 
independent states of the former Soviet Union, the negotiation 
of such treaties increased. On August 11, 1992, the Senate 
advised ratification of BITs with the People's Republic of the 
Congo, Tunisia, Sri Lanka, the Czech and Slovak Federal 
Republic, and the Russian Federation.\79\ On September 15, 
1993, the Foreign Relations Committee favorably reported 
without reservations investment treaties with eight other 
countries.\80\ The Senate gave its advice and consent to one of 
these, the investment treaty with Kazakhstan, on October 21, 
1993.\81\ Ratification of the remaining seven treaties was 
advised on November 17, 1993.\82\
---------------------------------------------------------------------------
    \79\ Treaty Docs. 102-1, 102-6, 102-25, 102-31, and 102-33. 
Congressional Record, August 11, 1992, p. 22861.
    \80\ Investment Treaties with Romania, Argentina, Bulgaria, 
Armenia, Kazakhstan, Kyrgyzstan, Moldova, and Ecuador. Treaty Docs. 
102-36, 103-8, 103-9, 103-11, 103-12, 103-13, 103-14, 103-15. Reported 
September 15, 1993, S. Exec. Repts. 103-7, 103-2, 103-3, 103-10, 103-
11, 103-12, 103-13, and 103-15. Congressional Record, September 15, 
1993, p. 21603.
    \81\ Congressional Record, October 21, 1993, p. 25853.
    \82\ Congressional Record, November 17, 1993, p. 29688.
---------------------------------------------------------------------------
    Nine BITs were favorably reported by the Senate Foreign 
Relations Committee without reservations on June 20, 1996.\83\ 
Ratification was advised by the Senate on June 27, 1996.\84\ 
The treaty with Belarus was reported and approved with a 
declaration that the President was directed to communicate to 
the Republic of Belarus when instruments of ratification were 
exchanged. The declaration expressed the sense of the Senate 
that the United States ``(a) supports the Belarusian Parliament 
and its essential role in the ratification process of this 
treaty; (b) recognizes the progress made by the Belarusian 
Parliament towards democracy during the past year; (c) fully 
expects that the Republic of Belarus will remain an independent 
state committed to democratic and economic reform; and (d) 
believes that, in the event that the Republic of Belarus should 
unite with any other state, the rights and obligations 
established under this agreement will remain binding on the 
part of the Successor State that formed the Republic of Belarus 
prior to the union.''
---------------------------------------------------------------------------
    \83\ Investment Treaties with Jamaica, Belarus, Ukraine, Estonia, 
Mongolia, Latvia, Georgia, Trinidad and Tobago, Albania. Treaty Docs. 
103-35, 103-36, 103-37, 103-38, 104-10, 104-12, 104-13, 104-14, and 
104-19. Reported June 20, 1996, S. Exec. Repts. 104-11, 104-12, 104-13, 
104-14, 104-15, 104-16, 104-17, 104-18, and 104-19. Congressional 
Record, June 20, 1996, p. 14807. The Senate Foreign Relations Committee 
held a hearing on these treaties in November 1995. U.S. Congress. 
Senate. Committee on Foreign Relations. Bilateral Treaties Concerning 
the Encouragement and Reciprocal Protection of Investment. Hearing. 
November 30, 1995. S. Hrg. 104-289.
    \84\ Congressional Record, June 26, 1996, pp. 15828-15829.
---------------------------------------------------------------------------
    Ten BITs \85\ and one protocol to an earlier BIT \86\ were 
favorably reported by the Senate Foreign Relations Committee on 
October 4, 2000.\87\ The Senate advised ratification of these 
treaties on October 18, 2000.\88\ For each BIT, the committee 
recommended and the Senate approved the following declaration 
regarding treaty interpretation, stated in each resolution of 
ratification to be binding on the President:
---------------------------------------------------------------------------
    \85\ Investment Treaties with Uzbekistan, Bahrain, Bolivia, 
Honduras, El Salvador, Croatia, Jordan, Mozambique, Lithuania, and 
Azerbaijan. Treaty Docs. 104-25, 106-25, 106-26,106-27, 106-28, 106-29, 
106-30, 106-31,106-42,and 106-47. Reported October 4. 2000, S. Exec. 
Rept. 106-23. Congressional Record, October 4, 2000, pp. S9855-S9856 
(daily ed.).
    \86\ Protocol Between the Government of the United States of 
America and the Government of the Republic of Panama Amending the 
Treaty Concerning the Treatment and Protection of Investments of 
October 27, 1982, Senate Treaty Doc. 106-46. The protocol is intended 
to ensure that binding international arbitration under the Convention 
on the Settlement of Investment Disputes Between States and Nationals 
of Other States (ICSID Convention) will be available for disputes 
between investors and treaty parties, a result that the 1982 BIT 
precluded after Panama acceded to the convention in 1996.
    \87\ S. Exec. Rept. 106-23. Congressional Record, October 4, 2000, 
pp. S9855-S9856 (daily ed.).
    \88\ Congressional Record, October 18, 2000, pp. S10660-S10662 
(daily ed.).
---------------------------------------------------------------------------
         The Senate affirms the applicability to all treaties 
        of the constitutionally based principles of treaty 
        interpretation set forth in condition (1) of the 
        resolution of ratification of the INF Treaty, approved 
        by the Senate on May 27, 1988, and condition (8) of the 
        resolution of ratification of the Document Agreed Among 
        the States Parties to the Treaty on Conventional Armed 
        Forces in Europe, approved by the Senate on May 14, 
        1997.\89\
---------------------------------------------------------------------------
    \89\ See, for example, resolution of ratification for Treaty with 
Uzbekistan. Congressional Record, October 18, 2000, p. S10662 (daily 
ed.). Condition (1) of the resolution of ratification for the INF 
Treaty, among other things, provides that ``the United States shall 
interpret the Treaty in accordance with the common understanding of the 
Treaty shared by the President and the Senate at the time the Senate 
gave its advice and consent to ratification,'' lists the elements on 
which this ``common understanding'' is based, and states that ``the 
United States shall not agree to or adopt an interpretation different 
from that common understanding except pursuant to Senate advice and 
consent to a subsequent treaty or protocol, or the enactment of a 
statute.'' Condition (8) of the Document Agreed Among the States 
Parties to the Treaty on Conventional Armed Forces in Europe (CFE Flank 
Agreement), among other things, reaffirms the principles of treaty 
interpretation contained in resolution of ratification for the INF 
Treaty. For the text of the cited interpretive provisions, see the 
Congressional Record, May 27, 1988, p. 12849, and May 14, 1997, p. 
S4475 (daily ed.).

    Each BIT was also approved with the following committee-
recommended proviso to the resolution of ratification: 
``Nothing in this Treaty requires or authorizes legislation or 
other action by the United States of America that is prohibited 
by the Constitution of the United States as interpreted by the 
United States''; the resolution further stated that the proviso 
was not to be included in the instrument of ratification to be 
signed by the President.\90\
---------------------------------------------------------------------------
    \90\ See, for example, resolution of ratification for Treaty with 
Uzbekistan. Congressional Record, October 18, 2000, p. S10662 (daily 
ed.).
---------------------------------------------------------------------------
    The executive branch and the Senate have demonstrated 
interest in maintaining an escape clause in BITs, similar to 
that contained in FCN treaties. A standard provision in BITs 
based on the 1992 and earlier models states that the treaty 
``shall not preclude the application by either Party of 
measures necessary for the maintenance of public order, the 
fulfillment of its obligations with respect to the maintenance 
or restoration of international peace or security, or the 
protection of its own essential security interests.'' In 1988, 
in approving several BITs, the Foreign Relations Committee 
added an understanding to the resolutions of ratification 
stating that under this article, ``either Party may take all 
measures necessary to deal with any unusual and extraordinary 
threat to its national security.'' \91\ The report emphasized 
that ``U.S. national security interests, as determined by the 
President, should take precedence over provisions of the 
treaties, should that become necessary.'' \92\
---------------------------------------------------------------------------
    \91\ Investment Treaties with Senegal, Zaire, Morocco, Turkey, 
Cameroon, Bangladesh, Egypt, and Grenada. Treaty Docs. 99-15, 99-17, 
99-19, 99-22, 99-23, 99-24, and 99-25. Reported October 4, 1988, S. 
Exec. Rept. 100-32. Approved October 20, 1988.
    \92\ S. Exec. Rept. 100-32, October 4, 1988, p. 3.
---------------------------------------------------------------------------
    The committee did not add this understanding in 1992 when 
it approved BITs with the Czech and Slovak Federal Republic, 
the People's Republic of the Congo, the Russian Federation, Sri 
Lanka, and Tunisia. The administration took the view that the 
understanding could delay progress of the treaties and was not 
necessary because a treaty article clearly encompassed U.S. 
economic emergency powers. A protocol attached to the Russian 
bilateral investment treaty explicitly confirmed the mutual 
understanding of the two parties ``that whether a measure is 
undertaken by a Party to protect its essential security 
interests is self-judging.'' \93\ The provision in the 1994 
prototype does not contain the earlier language regarding 
measures necessary for the maintenance of public order; this 
shortened version is used in the treaties with Georgia, 
Trinidad and Tobago, Albania, and nine of the treaties approved 
in October 2000,\94\ each of which is based on the 1994 model.
---------------------------------------------------------------------------
    \93\ Article 8 of Protocol to Treaty with the Russian Federation 
Concerning the Encouragement and Reciprocal Protection of Investment, 
Treaty Doc. 102-33, July 28, 1992.
    \94\ Investment treaties with Uzbekistan, Bahrain, Bolivia, 
Honduras, El Salvador, Croatia, Jordan, Mozambique, and Azerbaijan; the 
BIT with Lithuania, which is based on the 1992 model, contains the 
earlier version of the provision. See list of treaties at supra note 
85.
---------------------------------------------------------------------------
    Investment obligations have begun to appear in multilateral 
frameworks, for example, the World Trade Organization (WTO) 
Agreement on Trade-Related Investment Measures and the WTO 
General Agreement on Trade in Services, which contains rights 
and obligations regarding the commercial presence of service 
providers in the territory of WTO Member countries.\95\ A 
trilateral investment agreement among the United States, 
Canada, and Mexico incorporating BIT principles is contained in 
Chapter 11 of the North American Free Trade Agreement 
(NAFTA).\96\ The negotiation of a Multilateral Agreement on 
Investment (MAI) by member states of the Organization for 
Economic Cooperation and Development (OECD) was initiated in 
1995, with a consolidated draft text issued in February 1998. 
Negotiations were ended in December 1998 because of strong 
objections by labor and environmental groups and various 
concerns over treaty provisions cited by negotiating 
countries.\97\
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    \95\ These agreements were approved by Congress in the Uruguay 
Round Agreements Act (URAA), Public Law 103-465, Section 101(a). The 
URAA was considered under expedited legislative procedures for 
multilateral trade agreements provided for in Title I of the Omnibus 
Trade and Competitiveness Act of 1988, Public Law 100-418.
    \96\ The NAFTA was approved by Congress in Section 101(a) of the 
North American Free Trade Agreement Implementation Act (NAFTA Act), 
Public Law 103-182, under expedited legislative procedures for free 
trade agreements provided for in Title I of the Omnibus Trade and 
Competitiveness Act of 1988, Public Law 100-418. The NAFTA Act was 
jointly reported by several Senate committees, including the Foreign 
Relations Committee, in S. Rept. 103-189. It was referred to the 
committee because of provisions related to U.S. participation in NAFTA 
supplemental agreements on labor and the environment, the Border 
Environmental Cooperation Commission, and the North American 
Development Bank. S. Rept. 103-189, p. 129.
    \97\ ``OECD Countries Kill MAI Talks But Say World Still Needs 
Rules,'' 15 Int'l Trade Rep. 2954 (BNA 1998). Some Senate committee 
discussion of MAI negotiations may be found in the November 1995 
Foreign Relations Committee hearing on pending BITs. U.S. Congress. 
Senate. Committee on Foreign Relations. Bilateral Treaties Concerning 
the Encouragement and Reciprocal Protection of Investment. Hearing. 
November 30, 1995. S. Hrg. 104-289. A House hearing on the negotiations 
was held in March 1998. U.S. Congress. House. Committee on 
International Relations. Subcommittee on International Economic Policy 
and Trade. Multilateral Agreement on Investment: Win, Lose, or Draw for 
the U.S.? March 5, 1998.
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                          consular conventions

    Consular conventions provide for the establishment of 
consular posts and appointments and immunities of consular 
officials. Consular relations were traditionally government by 
customary international law and bilateral consular agreements. 
In 1963, a conference sponsored by the United Nations adopted 
the Vienna Convention on Consular Relations, which has since 
been ratified or adhered to by more than 130 nations, including 
the United States.\98\ The Diplomatic Relations Act of 1978 
established the Vienna Convention as U.S. law on diplomatic 
privileges and immunities with respect to nonparties to the 
convention.\99\
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    \98\ Signed April 18, 1961, 23 UST 3227, entered into force for the 
United States on December 13, 1972.
    \99\ Public Law 95-393, as amended.
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    The Vienna Convention reduced the need for bilateral 
consular conventions, but it did not invalidate previously 
existing bilateral agreements or prevent future agreements to 
supplement or amplify its provision. The United States has 
continued to negotiate bilateral agreements on occasion, and by 
the end of 1991, there were approximately 65 bilateral consular 
treaties.\100\
---------------------------------------------------------------------------
    \100\ Recent examples are Consular Conventions with the Republic of 
Tunisia, signed May 12, 1988 (Treaty Doc. 101-12); Algeria, signed 
January 12, 1989 (Treaty Doc. 101-13); and the Mongolian People's 
Republic, signed August 2, 1990 (Treaty Doc. 101-14). The Consular 
Conventions with Tunisia, Algeria, and Mongolia were approved by 
committee May 7, 1992, S. Exec. Rept. 102-25, 25, and 27, respectively, 
and by the Senate on May 13, 1992. Hearings were held April 8, 1992. 
U.S. Congress. Senate. Committee on Foreign Relations. Consular 
Conventions, Extradition Treaties, and Treaties Relating to Mutual 
Legal Assistance in Criminal Matters (MLATs). Hearing. April 8, 1992. 
S. Hrg. 102-674.
---------------------------------------------------------------------------
    In reporting consular conventions with Tunisia and Algeria 
in 1992, the Foreign Relations Committee agreed with the 
administration's view that the conventions would provide 
greater protection to U.S. citizens in the face of increased 
violations of human rights in Tunisia and the suspension of 
elections in Algeria. The bilateral conventions obligate the 
other country to notify the U.S. consul without delay whenever 
a U.S. national is arrested, and to allow U.S. access to the 
national provisions more specific than the Vienna Convention. 
The committee stressed that approval did not constitute an 
endorsement of policies of those countries and repeated Bush 
Administration assurances that, ``treaties that enhance a 
country's capacity to protect its nationals in other countries 
are not generally seen as representing an endorsement of the 
policies of those countries.'' \101\
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    \101\ S. Exec. Rept. 102-26, May 1, 1992.
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                            tax conventions

    Since January 1993, the ever-increasing globalization of 
economic activity has assured continued interest by the United 
States in negotiating and renegotiating income tax treaties 
with numerous other countries. Of the 53 income tax treaties 
presently in force between the United States and other 
countries, 22 new or renegotiated treaties (that is, more than 
40 percent of the total) have entered into force during this 
period. Additional income tax treaties signed during the period 
have not yet entered into force. The major purpose of these 
treaties continues to be the avoidance of double taxation: that 
is, the object is to avoid taxation by both jurisdictions in 
instances where a resident of one earns income from sources 
within the other. Another important purpose of the treaties is 
to prevent evasion of income taxes through the exchange of 
relevant tax information.
    A special consideration in the negotiation of tax treaties 
is the need to coordinate treaty provisions with relevant 
domestic legislation. Hence, procedures for the negotiation and 
ratification of tax treaties are somewhat different from those 
followed in the case of other types of treaties. While most 
treaties are negotiated primarily by the State Department, tax 
treaties are negotiated primarily by the International Tax 
Counsel of the Treasury Department with State Department 
assistance. While the Senate Foreign Relations Committee has 
jurisdiction over review of all treaties, both the House 
Committee on Ways and Means and the Senate Finance Committee 
expect to be consulted in the case of tax treaties because of 
their jurisdiction over congressional consideration of tax 
legislation. Thus, after a tax treaty has been signed and 
submitted to the Senate for ratification, the staff of the 
Joint Committee on Taxation prepares an explanation of its 
provisions and submits that explanation to the Senate Committee 
on Foreign Relations. The Joint Committee explanation 
summarizes the treaty's provisions, may examine specific issues 
raised by the treaty, presents an overview of relevant U.S. tax 
law, and supplies article-by-article explanations of each of 
the treaty's provisions.
    Senate consideration of a tax treaty is also facilitated by 
comparison with two model income tax treaties: the model 
published in 1992 by the OECD and the U.S. model income tax 
treaty published in 1996.
    Some of the specific issues which have been presented by 
tax treaties negotiated or renegotiated during the period under 
examination are described below.
Treaty shopping
    Treaty shopping has been a concern for a number of years 
and continued to be during the period under review. The 
expression is used to describe the situation where a treaty 
between the United States and some other country is relied on 
by a resident of some third country to reduce U.S. tax 
liability even though the third country concerned does not 
accord reciprocal benefits on U.S. residents earning income 
from sources within its territorial jurisdiction. The anti-
treaty shopping provision of the U.S. model treaty is often 
used as a standard against which to compare the anti-treaty 
shopping provisions of specific actual treaties. The 1996 model 
treaty is more lenient in some respects than the prior model 
treaty \102\ and more restrictive in other respects. All of the 
actual treaties which went into force during the period under 
review include anti-treaty shopping rules. However, there is no 
uniformity but indeed there is wide variation among the 
treaties with respect to such rules. Of course, continuing 
developments in the fashioning of complex financial instruments 
and specialized contracts likely will assure that future 
treaties will require more complex mechanisms for preventing, 
or at least limiting, treaty shopping.
---------------------------------------------------------------------------
    \102\ The 75 percent ownership rule of the older model treaty has 
been changed to a 50 percent ownership rule in the newer model treaty 
and thus coincides with all recently negotiated treaties (including 
several negotiated before the period under review). Furthermore, the 
most recent treaties include rules allowing a third-country resident to 
enjoy treaty benefits if a treaty between the United States and the 
third country has entered into force. In fact, there is even a special 
provision in the treaty with Mexico that would accord treaty benefits 
to residents of any other country which is a party to NAFTA.
---------------------------------------------------------------------------
Exchange of information
    As noted above, preventing evasion of income tax is one of 
the two chief aims the United States has in negotiating income 
tax treaties. Treaty provisions regarding the exchange of 
fiscal information further that aim. A few treaties negotiated 
or renegotiated during the period under review assure the 
ability of the United States to obtain tax information from the 
other country to a more limited degree than either the model 
treaty or other recent treaties.\103\
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    \103\ The treaty with France very significantly restricts the 
ability of the United States to conduct audits in France. The treaty 
with Ireland only affords the United States limited access to 
information in the case of criminal offenses and no information in the 
case of civil offenses. The treaty with the Netherlands only affords 
the United States access to information relating to income taxes.
---------------------------------------------------------------------------
Allocation of income of multinational business enterprises
    Most U.S. income tax treaties include provisions which 
employ a so-called arm's-length standard to determine whether 
and to what extent the income of a multinational business must 
be reallocated in order to prevent evasion of tax in the United 
States or to clearly reflect the income of related enterprises. 
The leading industrialized countries use this same approach. 
Debate has occurred however with respect to whether a better 
approach might exist. One such approach used internally in the 
United States among the various states is formulary 
apportionment of the worldwide income of a juridical person or 
an affiliated group of related persons among the various 
jurisdictions claiming primary authority to tax portions of the 
whole.\104\
---------------------------------------------------------------------------
    \104\ This matter was cited by the Joint Committee as an issue 
presented by several treaties negotiated or renegotiated during the 
period under review. In some instances, it was characterized as an 
issue of ``transfer pricing'' (that is, see the JCT explanations of the 
treaties with France, Kazakhstan, and Sweden). In other instances, it 
was described as an issue involving ``associated enterprises and 
permanent establishments'' (that is, see the JCT explanations of the 
treaties with the Czech Republic, Mexico, the Netherlands, the Russian 
Federation, and the Slovak Republic).
---------------------------------------------------------------------------
Taxation of equipment rentals
    Although contrary to the general policy of the United 
States, certain treaties with developing countries allow a 
source country to impose a gross-basis tax on income from the 
rental of equipment in cases where the taxpayer does not 
maintain a permanent establishment in the source country. Three 
treaties negotiated during the period under review (that is, 
those with the Czech Republic, Kazakhstan, and the Slovak 
Republic) include provisions allowing the same.
Arbitration of competent authority issues
    Some treaties negotiated or renegotiated during the period 
under review \105\ follow a precedent established in the 1989 
treaty with Germany by including provisions allowing the 
competent authorities of the treaty countries to resolve 
disputes with respect to interpretation of the treaties in 
question through arbitration.
---------------------------------------------------------------------------
    \105\ The treaties in question are those concluded with France, 
Ireland, Kazakhstan, Mexico, and the Netherlands.
---------------------------------------------------------------------------
Insurance excise tax
    The treaties between the United States and certain, but not 
all, other countries contain provisions that make the U.S. 
excise tax on insurance premiums paid to foreign insurers 
inapplicable to insurers resident in the other treaty country. 
Congress has expressed strong reservations about such treaty 
waivers of the insurance excise tax in the past on the ground 
that they may put U.S. insurers at a relative competitive 
disadvantage if the other treaty country does not impose any 
substantial tax burden on its insurers. In such instances, the 
waiver does not further the policy objective of avoiding double 
taxation but rather has the effect of eliminating taxation of 
foreign insurers that compete against U.S. insurers in the 
worldwide market. Two earlier treaties \106\ in particular 
raised congressional concern since in at least one of the 
countries concerned \107\ no tax whatever was imposed on 
resident insurers. Treasury has included so-called ``anti-
conduit'' clauses in most \108\ of the more recent treaties 
that include relevant waivers. Such clauses provide that if an 
insurer resident in the other treaty country reinsures a 
relevant risk with a juridical person not entitled to the 
benefits of the treaty or any other treaty allowing a relevant 
waiver (for example, a person subject to an anti-treaty 
shopping provision), then the tax is not waived.
---------------------------------------------------------------------------
    \106\ Those treaties were the one with Barbados and the one with 
Bermuda.
    \107\ Bermuda.
    \108\ See the treaties with France, Ireland, Mexico, and Sweden but 
cf. the treaty with the Netherlands.
---------------------------------------------------------------------------

                       C. Environmental Treaties

    The negotiation of environmental treaties to protect 
various aspects of the physical world and surrounding 
atmosphere is not new. For decades, the United States has 
concluded bilateral and multilateral agreements on such 
subjects as fisheries, ocean mammals, conservation of wildlife, 
and prevention of pollution of the seas.\109\
---------------------------------------------------------------------------
    \109\ U.S. Congress. Senate. Committee on Commerce, Science, and 
Transportation. Treaties and Other International Agreements on 
Fisheries, Oceanographic Resources, and Wildlife Involving the United 
States. Prepared by the Congressional Research Service, October 31, 
1977.
---------------------------------------------------------------------------
    In recent years, especially since the U.N. Conference on 
the Human Environment held in Stockholm in 1972, international 
cooperation to protect the global environment has been sought 
through the conclusion of many more treaties, on broader 
subjects and wider scale. The International Trade Commission 
estimated in the early 1990s that two-thirds of 170 
environmental agreements of significance to the United States 
have been concluded since 1972. It divided the agreements into 
eight categories: (1) Marine fishing and whaling; (2) Land 
animals (including birds) and plant species; (3) Marine 
pollution; (4) Pollution of air, land, and inland waters; (5) 
Boundary waters between the United States and Mexico and 
Canada; (6) Maritime and coastal waters matters; (7) Nuclear 
pollution; and (8) Other general agreements.\110\
---------------------------------------------------------------------------
    \110\ United States International Trade Commission. International 
Agreements to Protect the Environment and Wildlife. Report to the 
Committee on Finance, United States Senate, on Investigation No. 332-
287 Under Section 332 of the Tariff Act of 1930. U.S. ITC Publication 
2351, January 1991. p. 1-1.
---------------------------------------------------------------------------
    In June 1992, the U.N. Conference on Environment and 
Development (UNCED) held in Rio de Janeiro, and referred to as 
the Earth Summit, brought together the largest summit of world 
leaders to date to conclude and plan for additional 
cooperation, including international agreements, concerning 
major environmental issues. Two conventions were presented for 
signature at the conference: the United Nations Framework 
Convention on Climate Change (UNFCCC), and the Convention on 
Biological Diversity. In addition, nations agreed at UNCED on 
non-legally binding documents that were expected to result in 
more international agreements in the future. These included 
Agenda 21, a program of action for sustainable economic 
development; the Rio Declaration on Environment and 
Development; and the Statement of Principles for a Global 
Consensus on the Management, Conservation, and Sustainable 
Development of All Types of Forests.
    In the period between the Stockholm Conference and the 
Earth Summit, the Senate was generally supportive of 
environmental treaties and encouraged their negotiation. In the 
period since the mid-1990s the Senate has evidenced concerns 
about some of the broader treaties, and confined approval to 
somewhat more limited measures on migratory birds, plants and 
fisheries issues. In the last few days of the 106th Congress, 
the Senate approved the Convention to Combat Desertification, 
the negotiation of which had emerged from the UNCED process. 
The Convention on Biological Diversity has remained pending in 
the Senate Committee on Foreign Relations since 1994. In 1997 
the Senate passed a resolution, S. Res. 98, during negotiations 
on the Kyoto Protocol to the Climate Change Convention, warning 
it would not approve a treaty that did not meet certain 
conditions.

                        no-reservations clauses

    In approving three environmental treaties in the early 
1990s--the Basel Convention, the Environmental Protocol to the 
Antarctic Treaty, and the United Nations Framework Convention 
on Climate Change--the Senate expressed its concern about 
articles limiting reservations. The Foreign Relations Committee 
has cautioned the administration that Senate consent in these 
cases should not be construed as a precedent. In addressing 
this concern, the administration transmitted the Convention on 
Biological Diversity to the Senate in 1994 with an interpretive 
statement of its ``understandings'' concerning the articles 
that it regarded as requiring clarification.
    In the case of the Basel Convention, the chairman of the 
Foreign Relations Committee made a statement in the Senate 
regarding reservations. In the other two treaties that were 
approved, the Foreign Relations Committee expressed its 
concerns in its reports. Discussion of these actions follows.
    The Basel Convention on the Control of Transboundary 
Movements of Hazardous Wastes and Their Disposal established a 
notice and consent system to control imports and exports of 
hazardous wastes. Article 26(1) provided:
          1. No reservation or exception may be made to this 
        Convention.
          2. Paragraph 1 of this Article does not preclude a 
        State or political and/or economic integration 
        organization, when signing, ratifying, accepting, 
        approving, formally confirming or acceding to this 
        Convention, from making declarations or statements, 
        however phrased or named, with a view, inter alia, to 
        the harmonization of its laws and regulations with the 
        provisions of this Convention, provided that such 
        declarations or statements do not purport to exclude or 
        to modify the legal effects of the provisions of the 
        Convention in their application to that State.\111\
---------------------------------------------------------------------------
    \111\ Treaty Doc. 102-5. Done March 22, 1989; submitted to the 
Senate May 20, 1991; reported May 28, 1992 (Exec. Rept. 102-36).

    On August 11, 1992, the Senate gave its advice and consent 
to the Basel Convention with four understandings requested by 
the administration. In presenting the treaty to the Senate, the 
chairman of the Foreign Relations Committee, Claiborne Pell, 
stated his concern about including in treaties a provision 
which has the effect of inhibiting the Senate from attaching 
reservations deemed necessary or of preventing the Senate from 
exercising its right to give its advice and consent to all 
treaty commitments before they can have a binding effect. He 
said the Senate's approval of these treaties ``should not be 
construed as a precedent for such clauses in future agreements 
with other nations requiring the Senate's advice and consent.'' 
\112\ The Basel Convention has not yet been ratified by the 
United States, because of continuing debate in the Congress 
regarding the content of implementing legislation.
---------------------------------------------------------------------------
    \112\ Congressional Record, August 11, 1992, p. S12293. Chairman 
Pell pointed out the committee had made its position on this issue 
clear in the past, S. Exec. Rept. No. 3, 85th Cong., 1st Sess., p. 17, 
1957.
---------------------------------------------------------------------------
    The Protocol on Environmental Protection to the Antarctic 
Treaty committed parties to comprehensive protection of the 
Antarctic environment and its associated and dependent 
ecosystems, and designated Antarctica as a natural reserve. 
Article 24 stated, ``Reservations to this Protocol shall not be 
permitted.'' \113\ It did not specifically permit 
understandings to harmonize the convention with national laws, 
as did the Basel Convention. When asked why the administration 
agreed to the provision, the Department of State replied that 
it was prepared to accept all the commitments in the protocol, 
subject to the adoption of appropriate implementing legislation 
and regulations, and that therefore reservations were not 
required.\114\
---------------------------------------------------------------------------
    \113\ Article 24 of Protocol on Environmental Protection to the 
Antarctic Treaty (Treaty Doc. 102-22), done October 4, 1991, and 
submitted to the Senate February 18, 1992. Ordered reported June 11, 
1992. Approved by Senate October 7, 1992.
    \114\ Protocol on Environmental Protection to the Antarctic Treaty 
(Treaty Doc. 102-22). Hearing, May 4, 1992. Responses of the State 
Department to Questions Asked by Senator Pell. Appendix, p. 37.
---------------------------------------------------------------------------
    In reporting the protocol, the Foreign Relations Committee 
recorded its concern ``of including in treaties a provision 
which has the purported effect of inhibiting the Senate from 
attaching reservations deemed necessary in the national 
interest or of preventing the Senate from exercising its 
constitutional duty to give its advice and consent to all 
treaty commitments before they can in any way have a binding 
effect upon the United States.'' It added:
          Whatever justifications may have existed for 
        inclusion of such a prohibition in the Antarctic 
        protocol * * * or the Basel Convention, in view of the 
        peculiar circumstances there present, the Senate's 
        approval of these treaties should not be construed as a 
        precedent for such clauses in future agreements with 
        other nations requiring the Senate's advice and 
        consent. The committee has made its position on this 
        issue clear in the past (S. Exec. Rept. No. 3, 85th 
        Cong., 1st Sess., p. 17, 1957). The President's 
        agreement to such a prohibition can not constrain the 
        Senate's constitutional right and obligation to give 
        its advice and consent to a treaty subject to any 
        reservation it might determine is required by the 
        national interest.\115\
---------------------------------------------------------------------------
    \115\ Exec. Rept. 102-54, September 22, 1992. p. 7.

    The committee repeated this statement in its report on the 
UNFCCC, which had a similar no-reservations article.\116\ This 
convention had the objective of stabilizing greenhouse gas 
concentrations in the atmosphere at the level that would 
prevent dangerous interference with the climate system, and 
established a framework for addressing relevant issues with 
different obligations for developed and developing 
countries.\117\
---------------------------------------------------------------------------
    \116\ Exec. Rept. 102-55, October 1, 1992. p. 15.
    \117\ Treaty Doc. 102-38. Adopted May 9, 1992, and signed June 12, 
1992. Submitted to the Senate September 8, 1992. Approved by the Senate 
October 7, 1992.
---------------------------------------------------------------------------
    On the Climate Change Convention, the Foreign Relations 
Committee also noted that decisions by the parties to adopt 
targets and timetables for limiting emissions would have 
submitted to the Senate for advice and consent. It noted 
further:
        that a decision by the executive branch to reinterpret 
        the Convention to apply legally binding targets and 
        timetables for reducing emissions of greenhouse gases 
        to the United States would alter the ``shared 
        understanding'' of the Convention between the Senate 
        and the executive branch and would therefore require 
        the Senate's advice and consent.\118\
---------------------------------------------------------------------------
    \118\ Exec. Rept. 102-55, p. 14.

    In 1997 the parties to the UNFCCC agreed at their third 
Conference of the Parties to adopt the Kyoto Protocol to the 
UNFCCC, which outlined legally binding reductions in greenhouse 
gas emissions for all annex I parties (developed/industrialized 
countries), to cumulatively total a 5-percent reduction of 
greenhouse gas emissions below 1990 levels by these parties 
averaged over the period 2008-2012. In mid-1997, as these 
negotiations were underway, the Senate passed S. Res. 98, which 
stated that the Senate would not approve any agreement on 
binding reductions in greenhouse gases that did not include 
commitments by developing countries as well as developed/
industrialized countries, or that would result in harm to the 
U.S. economy. The administration has not transmitted the Kyoto 
Protocol to the Senate because, among other reasons, developing 
countries have to date not been willing to consider making 
binding commitments regarding their greenhouse gas emissions.

                          fishery conventions

    Fishery treaties allocate rights to fish in specified 
coastal and ocean areas, limit the total allowable catch of 
various species to prevent depletion of stocks, or set 
international standards for harvesting and managing fishery 
resources.
    Bilateral treaties have long been important for regulating 
international fisheries and fishing by foreign nations in 
coastal waters. One of the earliest U.S. fishery treaties was 
the 1818 Convention Respecting Fisheries, Boundary, and the 
Restoration of Slaves, concluded with Great Britain pertaining 
to Canada. It provided that the inhabitants of the United 
States, in common with the British subjects, ``shall have 
forever * * * the liberty to take fish of every kind'' in a 
specified area, and to dry and cure them, while the United 
States renounced the liberty to take, dry, or cure fish within 
3 miles of the coasts not included in the specified area.\119\ 
The United States is now party to numerous bilateral treaties 
on fisheries, a recent example being the 1985 Treaty Between 
the Government of the United States of America and the 
Government of Canada Concerning Pacific Salmon.
---------------------------------------------------------------------------
    \119\ Convention Respecting Fisheries, Boundary, and the 
Restoration of Slaves, October 20, 1818, TS 112.
---------------------------------------------------------------------------
    Multilateral treaties on fisheries have largely developed 
since the Second World War, especially after technological 
advances enabled wideranging fishing fleets to increase their 
catch. These treaties aim to protect identified species or 
fisheries in general in a specific area, and establish a regime 
for regulating these fisheries and settling disputes.
    A recent fishery convention was the Agreement for the 
Implementation of the Provisions of the United Nations 
Convention on the Law of the Sea of 10 December 1982 Relating 
to the Conservation and Management of Straddling Fish Stocks 
and Highly Migratory Fish Stocks, sometimes called the 
Straddling Stocks Convention.\120\ This treaty authorizes the 
adoption, monitoring, and enforcement of specific management 
and conservation measures to address problems of unregulated 
fishing, overcapitalization, excessive fleet size, vessel 
reflagging to escape controls, insufficiently selective gear, 
unreliable databases, and insufficient cooperation among 
nations.
---------------------------------------------------------------------------
    \120\ Treaty Doc. 104-24, signed by the United States and 26 other 
nations on December 4, 1995. Submitted to the Senate for advice and 
consent on February 20, 1996; reported on June 26, 1996, Exec. Rept. 
104-20; and approved on June 27, 1996.
---------------------------------------------------------------------------
    In reporting the treaty, the Senate Foreign Relations 
Committee stated that the agreement provides additional tools 
to increase the compliance and enforcement mechanisms necessary 
for managing fish stocks that migrate beyond a country's 
sovereign jurisdiction. The report noted the special 
significance of the agreement's emphasis on the precautionary 
approach to fishery management, with a description in an annex 
to the agreement outlining how this precautionary approach is 
to be applied. The committee expressed concern that this 
agreement, in Article 42, contained a ``no-reservations'' 
clause that would impinge upon Senate prerogative, and reported 
the agreement with the declaration that Senate approval of this 
agreement not be construed as a precedent for acquiescence to 
future treaties containing such a provision.\121\
---------------------------------------------------------------------------
    \121\ Exec. Rept. 104-20, June 26, 1996.
---------------------------------------------------------------------------
    In recommending approval, Foreign Relations Committee 
Ranking Minority Member Claiborne Pell noted that the 
convention confirms the U.S. approach to fisheries management 
and reflects the acceptance by other nations of that approach, 
with the Magnuson-Stevens Fishery Conservation and Management 
Act providing the necessary legislative authority for the 
United States to carry out its obligations under this 
convention.\122\
---------------------------------------------------------------------------
    \122\ Congressional Record, June 27, 1996, p. S7209 (daily ed.).
---------------------------------------------------------------------------
    International agreements concerning fisheries are done by 
both treaties and statutory agreements. The Magnuson-Stevens 
Fishery Conservation and Management Act of 1976, as 
amended,\123\ enacted exclusive fishery management by the 
United States within a 200 nautical mile fishery conservation 
zone extending seaward from the coast.\124\ It authorized 
foreign fishing within this zone under Governing International 
Fishery Agreements (GIFAs) which would not require submission 
to the Senate but would require transmittal to Congress. These 
agreements would not become effective until after 60 calendar 
days of continuous session of Congress following the 
transmittal. Congress thus gave itself an opportunity to 
prevent GIFAs from entering into force.\125\ The Act also 
called for renegotiation of any treaty which pertained to 
fishing within the EEZ, or for certain resources outside the 
zone.
---------------------------------------------------------------------------
    \123\ Public Law 94-265, as amended. 16 U.S.C. 1801 et seq.
    \124\ The fishery conservation zone was modified by Presidential 
Executive Order No. 5030 (March 10, 1983) to become the EEZ.
    \125\ H.R. 1653 (106th Congress) on approving a GIFA with the 
Russian Federation is an example of recent legislation of this nature.
---------------------------------------------------------------------------

                          D. Legal Cooperation

    Treaties providing for cooperation in bringing suspected 
criminals to trial have become increasingly important with the 
growth of transborder criminal activity, including narcotics 
trafficking, terrorism, money laundering, and export control 
violations. The two chief types are extradition and mutual 
legal assistance treaties (MLATs).\126\
---------------------------------------------------------------------------
    \126\ For a general discussion see: U.S. Congress. Senate. 
Committee on Foreign Relations. Consular Conventions, Extradition 
Treaties, and Treaties Relating to Mutual Legal Assistance in Criminal 
Matters (MLATS). Hearing. April 8, 1992. Washington, U.S. Government 
Printing Office, 1992; and Worldwide Review of Status of U.S. 
Extradition Treaties and Mutual Legal Assistance Treaties. Hearing. 
October 29, 1987.
---------------------------------------------------------------------------

                          extradition treaties

    With dramatic increases in transnational crime, personal 
mobility, and technological innovation, the United States has 
been actively seeking new treaty relationships to meet the 
challenges of modern law enforcement. Renegotiation of existing 
extradition treaties and the adoption of new extradition 
agreements are very much part of this undertaking. The goal is 
to facilitate the transfer of fugitives from a broader range of 
crimes, while still protecting national interests of the 
parties to them.
    International extradition is the juridical process for the 
transfer of individuals between sovereign states for criminal 
trial or punishment.\127\ Though extradition often is 
characterized as part law, part diplomacy, the United States 
will not transfer an individual abroad for trial or punishment 
unless the transfer is authorized by treaty or statute.\128\
---------------------------------------------------------------------------
    \127\ While extradition treaties cover both obtaining suspects for 
trial and obtaining previously convicted individuals for punishment, 
they are most commonly used for the former purpose.
    \128\ Valentine v. United States ex. rel. Neidecker, 299 U.S. 5, 8-
9 (1936).
---------------------------------------------------------------------------
     U.S. courts do not require a similar legal predicate for 
trying or punishing a person brought before them from 
abroad.\129\ Nevertheless, extradition remains the primary 
process for obtaining wanted individuals.
---------------------------------------------------------------------------
    \129\ United States v. Alvarez-Machain, 504 U.S. 655 (1992) 
(upholding the Ker-Frisbie doctrine by reiterating that U.S. courts may 
try an individual brought here after forcible abduction abroad).
---------------------------------------------------------------------------
     Extradition for a limited number of crimes is governed by 
multilateral treaties, but extradition generally proceeds under 
bilateral treaties, as implemented under Federal statute.\130\ 
The United States is now party to approximately 115 bilateral 
extradition agreements. Of our current treaties, only about 
half came into force, in whole or in part, after 1970. Treaties 
that pre-date 1945 still govern extradition with many of our 
treaty partners.
---------------------------------------------------------------------------
    \130\ 18 U.S.C. Sec. Sec. 3181 et seq.
---------------------------------------------------------------------------
     The substantive issues addressed in our bilateral 
extradition treaties have remained substantially constant over 
time. Each treaty establishes a mutual obligation of the 
parties to extradite in accordance with the treaty's terms. 
Each treaty identifies the types of criminal conduct to which 
the duty to extradite applies. Each treaty includes various 
exceptions and modifications to the duty to extradite. These 
commonly concern politically motivated offenses, nationals of 
the requested state, and, more recently, capital crimes. Prior 
proceedings against an individual in the requested state also 
may affect whether he or she may be extradited. Under 
provisions known as the rule of specialty, further limitations 
are placed on what a party may do once an individual has been 
extradited to it. For example, restrictions are placed on 
trying an extradited individual for additional crimes and on 
transferring such an individual to a third country.
     Extradition agreements limit their application to the 
offenses designated in them. The older agreements designate 
extraditable offenses through inclusion of a list of covered 
crimes. Some, but not all, of these agreements include an 
additional requirement that a listed offense be considered a 
felony by both the requesting and the requested states. The 
more recent extradition agreements either supplement or 
supplant the list method with a general dual criminality test. 
Under this test, extradition may be had for any offense that is 
punishable by imprisonment of at least 1 year by both the 
requesting state and the requested state.\131\
---------------------------------------------------------------------------
    \131\ See M. Abbell & B. Ristau, 4 International Judicial 
Assistance Sec. 13-2-4(2) (1990).
---------------------------------------------------------------------------
     Limiting coverage to specifically listed offenses has lost 
favor because of its inflexibility. While the domestic criminal 
laws of most countries expand their reach over time--to cover 
drug trafficking, money laundering, computer crimes, and 
securities fraud, for example--extradition practice under a 
``listed offense'' treaty can adjust correspondingly only 
through renegotiation. Consequently, the United States has 
sought over the past 20 years to negotiate agreements that 
define covered offenses solely in terms of dual criminality 
without specific reference to the nature of the underlying 
conduct.
     Also, U.S. extradition agreements concluded before 1960 
typically limit the obligation to extradite to crimes committed 
within the ``jurisdiction'' of the requesting state. 
``Jurisdiction'' in the context of these agreements is 
interpreted to mean territorial jurisdiction only, not criminal 
jurisdiction. As U.S. criminal law increasingly addresses 
extraterritorial acts, a disparity arises under older 
agreements between the reach of U.S. law and our ability to 
bring suspects to trial.
     Over the past 25 years, the United States has sought to 
negotiate extradition agreements that better accommodate the 
longer reach of our criminal laws. With very limited exception, 
all recent agreements make express provision for 
extraterritorial crimes. Most commonly, the agreements either 
allow or mandate extradition for extraterritorial acts if the 
criminal law of the requested state would punish 
extraterritorial acts under similar circumstances. Some 
agreements further permit or require extradition where the 
requesting state is basing its extraterritorial criminal 
jurisdiction on the nationality of the offender. A few newer 
agreements state that the location of the crime is irrelevant 
so long as the offense otherwise meets dual criminality 
requirements.
     The political offense exception in international 
extradition practice protects an individual from being sent 
abroad to stand trial or face punishment for an offense of a 
political nature. This exception has been a fundamental 
component of U.S. extradition practice from its inception. 
Indeed, even though all bilateral extradition treaties to which 
the United States is a party now apparently contain an express 
exception for political offenses, the United States early 
recognized the exception even absent a political offense clause 
in the pertinent treaty.\132\
---------------------------------------------------------------------------
    \132\ John Basset Moore cited the following letter in his 1906 
Digest of International Law: ``Neither the extradition clause in the 
treaty of 1794 nor in that of 1842 contains any reference to immunity 
for political offenses or to the protection of asylum for political or 
religious refugees. The public sentiment of both countries made it 
unnecessary. Between the United States and Great Britain, it was not 
supposed, on either side, that guarantees were required of each other 
against a thing inherently impossible * * *.'' 4 J.B. Moore, A Digest 
of International Law 334 (1906) (Letter of May 22, 1876, from Mr. Fish 
to Mr. Hoffman). See also Lubet, Extradition Reform: Executive 
Discretion and Judicial Participation in the Extradition of Political 
Terrorists, 15 Am. Int. L.J. 247, 249 (1982).
---------------------------------------------------------------------------
     The existence of the political offense exception often has 
been clearer than its bounds. Political offenses may fall 
within either of two categories.\133\ The first category is 
that of pure political offenses, consisting of treason, 
espionage, sedition, and other acts directed against the state 
as such and not against individuals. The second category, that 
of relative political offenses, consists of common crimes that 
are so connected with political activity that the entire 
offense is regarded as political. Determining the requisite 
connection between a common crime and political activity often 
has proved troublesome under this second category.
---------------------------------------------------------------------------
    \133\ See, for example, discussion of the exception in Quinn v. 
Robinson, 783 F. 2d 776, 793-803 (9th Cir. 1986).
---------------------------------------------------------------------------
     Even though U.S. extradition practice universally has 
barred extradition for political offenses, there has been a 
trend over the past 20 years toward narrowing the scope of the 
political offense exception, particularly with respect to 
relative political offenses. Newer extradition treaties have 
excluded from consideration as political offenses (either by 
specific listing or by general reference) certain universally 
condemned crimes that are the subject of multilateral 
agreements. Under these agreements, covering such crimes as 
hostage taking, air hijacking, aircraft sabotage, and attacks 
on internationally protected persons, a party state must either 
prosecute a person accused of a covered crime or extradite the 
person for trial elsewhere. Flowing from an older tradition, 
attacks on a head of state or the head of state's family also 
are generally excluded from political offenses.
     The United States significantly departed from previous 
political offense practice in 1986 with the adoption of a new 
supplementary extradition treaty with the United Kingdom.\134\ 
Under the supplementary treaty, most serious violent crimes 
against individuals are excluded from consideration as 
political offenses. The U.K. model subsequently was used in 
some treaties concluded with democratic allies (for example, 
Canada and Germany), but other recent treaties with democratic 
allies (for example, Australia) have not narrowed the political 
offense exception in line with the U.K. treaty.
---------------------------------------------------------------------------
    \134\ Supplementary Extradition Treaty, June 25, 1985, U.S.-U.K., 
T.I.A.S. No. 12050.
---------------------------------------------------------------------------
     The United States, like many common law countries, does 
not object to extraditing its own nationals, and we have sought 
to negotiate treaties without nationality restrictions. 
However, to the frustration of U.S. law enforcement, many civil 
law countries, particularly Latin American countries, still 
restrict extradition of their nationals under their extradition 
agreements, their domestic law,\135\ or both.
---------------------------------------------------------------------------
    \135\ An example of denying extradition on the basis of nationality 
in domestic law--treaty obligations, notwithstanding--is Israel's 
refusal to extradite Samuel Sheinbein, a Maryland resident indicted in 
that state murder. Israel has subsequently modified its nationality 
restrictions.
---------------------------------------------------------------------------
     Most recent agreements continue to place some restrictions 
on the extradition of nationals of the requested state, but 
these restrictions generally do not outright bar extradition. 
More commonly, the requested state has discretion to refuse 
extradition, but the exercise of this discretion often is 
conditioned on the requested state prosecuting the individual 
itself. In what may signal diminished insistence by our treaty 
partners on nationality restrictions, none of the four most 
recent treaties considered by the Foreign Relations Committee--
including one with Paraguay--contains a nationality clause.
     Death penalty provisions have become standard in recent 
U.S. extradition agreements.\136\ Among their advantages, these 
provisions permit states with capital punishment to obtain 
extradition for serious crimes from states whose laws do not 
permit capital punishment and who thereby might otherwise 
withhold surrender.
---------------------------------------------------------------------------
    \136\ The primary exceptions are some of our recent treaties with 
former British colonies in the Caribbean, many of which authorize 
capital punishment under their criminal laws.
---------------------------------------------------------------------------
     Most capital punishment provisions expressly authorize the 
requested state to take the possibility of capital punishment 
in the requesting state into account in determining whether to 
grant extradition. Of the approximately 30 capital punishment 
provisions, none categorically bars extradition whenever the 
person being sought might face capital punishment if 
extradited. Rather, the capital punishment provisions generally 
authorize the requested state to refuse extradition whenever 
the extraditable offense is punishable by death in the 
requesting state, but not in the requested state, unless the 
requesting state furnishes such assurances as the requested 
state considers sufficient that the death sentence will not be 
imposed and executed.
     Controversy over restricting the transfer of an extradited 
individual to a third party has arisen in the context of the 
International Criminal Court (ICC). Beginning in 1998, the 
Senate has made its advice and consent subject to an 
understanding on the application of the rule of specialty 
provisions in the respective extradition treaties it has 
approved. These understandings state that third-party transfer 
restrictions shall preclude the resurrender of any person from 
the United States to the ICC agreed to in Rome on July 17, 1998 
without the consent of the United States and that the United 
States is to withhold consent until the Senate gives its advice 
and consent to the treaty that establishes the court. Of 
broader, though more time limited, application are provisions 
in the Consolidated Appropriations Act, 2000 \137\ that bar the 
use of funds to extradite a U.S. citizen to any country that 
does not confirm that it will not transfer the person to the 
ICC. The Act further bars the use of funds to consent to the 
extradition of a citizen to any country that is under an 
obligation to surrender persons to the court unless the 
requesting state assures that no such surrender will occur.
---------------------------------------------------------------------------
    \137\ Public Law 106-113, App. H.R. 3427, Sec. 706, 113 Stat. 1537-
453.
---------------------------------------------------------------------------

                    mutual legal assistance treaties

    Mutual legal assistance treaties (MLATs) are a more recent 
type of treaty designed to obtain evidence needed from other 
countries for criminal cases and promote cooperation among law 
enforcement authorities in different countries. They have 
proven particularly useful in investigating and prosecuting 
multinational drug, money laundering and organized crime cases.
    The traditional procedure for obtaining evidence from 
foreign countries has been by letters rogatory, a written 
request from a court of one country to a court of another 
asking the court to provide evidence or some other assistance. 
U.S. officials have found the letters rogatory time consuming 
and less satisfactory because they were not compulsory and 
often produced evidence which was inadmissible in the recipient 
country's courts.
    Although individual MLATs vary, they obligate each country 
to provide evidence and other forms of assistance needed in 
criminal cases and have certain other general characteristics. 
They include procedures permitting the United States to obtain 
evidence in a form admissible in U.S. courts, such as the 
opportunity for adequate direct and cross-examination of 
witnesses in depositions taken abroad, and state that the 
compelling of testimony and documents and the execution of the 
requests is to occur in accordance with the laws of the 
responding state. The treaties are administered by a central 
authority, the Justice Department in the case of the United 
States, to be responsible for making and carrying out requests 
under the treaties. They provide the means for tracking, 
freezing and confiscating crime-tainted assets found beyond the 
borders of the country which the crime occurred. Finally, they 
usually include an ``escape clause,'' under which a party may 
deny assistance if the request does not conform to the treaty, 
relates to a political or military offense not recognized by 
ordinary criminal law, or if the provision of assistance would 
prejudice the security or essential public interests of the 
state to which the request was made.
    Negotiations on the first MLAT began in 1972 because of 
increasing evidence that Swiss banks were being used to launder 
and hide organized crime money. The resulting MLAT entered into 
force in 1977. By September 1999, MLATs entered into force with 
Switzerland, the Netherlands, Turkey, Italy, Canada, the United 
Kingdom concerning the Cayman Islands, the Bahamas, Mexico, 
Argentina, Thailand, Morocco, Spain, Uruguay, Jamaica, Panama, 
the United Kingdom, the Philippines, Hungary, South Korea, 
Austria, Israel, Antigua and Barbuda, Lithuania, St. Vincent 
and the Grenadines, Grenada, and Poland.
    The Foreign Relations Committee has concurred that MLATs 
add an element of standardization and uniformity to criminal 
procedures worldwide, and that the ability of criminals to hide 
the evidence and fruits of their crimes would be diminished 
with the enhancement of international cooperation in the 
investigation and prosecution of crimes. Congress has on 
occasion encouraged negotiation of MLATs. For example, in a May 
1990 conference report, it recommended that a portion of 
Panama's fiscal year 1990-1991 assistance be withheld pending 
``significant progress toward concluding an MLAT.'' \138\ And 
it insists that the annual International Narcotics Control 
Strategy Reports include a statement of the status of MLAT 
negotiations for each country with whom we have no such 
treaty.\139\
---------------------------------------------------------------------------
    \138\ H. Rept. 101-493 at 46 (1990).
    \139\ 22 U.S.C. 2291h(a)(2)(A).
---------------------------------------------------------------------------
    The Senate has sometimes inserted conditions or provisos in 
the resolutions of ratification. In the 1989 MLATs with Mexico, 
the Bahamas, Canada, Belgium, Thailand, and the United Kingdom, 
the Senate adopted an understanding proposed by Senator Helms 
aimed at preventing the granting of assistance to foreign 
officials who engage in, encourage, or facilitate the 
production or distribution of illegal drugs. Senator Helms 
expressed the view that the treaties could require giving 
assistance to corrupt officials and thus encourage narcotics 
trafficking. Executive branch officials complained that this 
understanding delayed entry into force of the treaties because 
other countries took it as an accusation that their officials 
were engaged in the drug trade.
    Senator Helms also proposed a reservation to the MLATs 
considered in 1989 asserting that nothing in the treaty 
required or authorized legislation or action by the United 
States prohibited by the Constitution as interpreted by the 
United States. The majority of the committee rejected the 
reservation as unnecessary, holding that the MLATs do not 
create new grounds for which U.S. citizens could be tried.\140\ 
In floor consideration on October 24, 1989, however, the Senate 
adopted the statement as an understanding, but without the 
phrase ``as interpreted by the United States.'' \141\
---------------------------------------------------------------------------
    \140\ Mutual Legal Assistance Treaty Concerning the Cayman Islands. 
S. Exec. Rept. 101-8 (1989).
    \141\ Senate consideration of Treaty Docs. No. 100-8 (Cayman 
Islands), 100-13 (Mexico), 100-14 (Canada), 100-16 (Belgium) and 100-17 
(Bahamas); 135 Cong. Rec. 25629-25637 (1989). For resolutions of 
ratification, see Journal of the Executive Proceedings of the Senate, 
Vol. 131, 101st Cong., 1st Sess. (S. Pub. 101-10) pp. 745-747.
---------------------------------------------------------------------------
    In approving MLATs with Jamaica, Argentina, Uruguay, and 
Spain on May 21, 1992, the committee reported both the 
understandings discussed above, but including the phrase ``as 
interpreted by the United States,'' as provisos in the 
resolution of ratification. The provisos specified they were 
not to be included in the instrument of ratification signed by 
the President. The two provisos stated:
          Nothing in this treaty requires or authorizes 
        legislation, or other action, by the United States of 
        America prohibited by the Constitution of the United 
        States as interpreted by the United States.
          Pursuant to the rights of the United States under 
        this treaty to deny requests which prejudice its 
        essential public policy or interest, the United States 
        shall deny a request for assistance when the Central 
        Authority, after consultation with all appropriate 
        intelligence, anti-narcotic, and foreign policy 
        agencies, has specific information that a senior 
        government official who will have access to information 
        to be provided under this treaty is engaged in or 
        facilitates the production or distribution of illegal 
        drugs.\142\
---------------------------------------------------------------------------
    \142\ Treaty Docs. Nos. 102-16 (Jamaica), 102-18 (Argentina), 102-
34 (Uruguay), and 102-21 (Spain); Ex. Repts. 102-18, 102-19, and 102-
35. Advice and consent given on July 2, 1992. Congressional Record 
(daily edition), May 21, 1992.

    The two provisos, with the specification that they were not 
to be included in the instrument of ratification, appear in the 
resolutions of ratification for the MLATs approved by the 
committee on October 14, 1998 for Australia, Barbados, Brazil, 
the Czech Republic, Estonia, Hong Kong, Israel, Latvia, 
Lithuania, Luxembourg, Poland, Trinidad and Tobago, Venezuela, 
Antigua and Barbuda, Dominica, Grenada, St. Kitts and Nevis, 
St. Lucia, and St. Vincent and the Grenadines.\143\ Each of the 
resolutions also featured a declaration of interpretive 
principles and an understanding that treaty assistance may not 
be transferred or used to assist the International Criminal 
Code unless the Senate has given its advice and consent to the 
treaty establishing the court.\144\
---------------------------------------------------------------------------
    \143\ S. Exec. Rept. 105-22, advice and consent of the Senate given 
on November 12, 1998, 144 Cong. Rec. S12985-S12992 (daily ed. Nov. 12, 
1998).
    \144\ For example, Resolution of Ratification, U.S.-Hong Kong 
Mutual Legal Assistance Treaty, reprinted in, S. Exec. Rept. 105-22 at 
367 (1998): ``(a) UNDERSTANDING.--The Senate's advice and consent is 
subject to the following understanding, which shall be included in the 
instrument of ratification: PROHIBITION ON ASSISTANCE TO THE 
INTERNATIONAL CRIMINAL COURT.--The United States shall exercise its 
rights to limit the use of assistance it provides under the Treaty so 
that any assistance provided by the Government of the United States 
shall not be transferred to or otherwise used to assist the 
International Criminal Court agreed to in Rome, Italy, on July 17, 
1998, unless the treaty establishing the court has entered into force 
for the United States by and with the advice and consent of the Senate, 
as required by Article II, section 2 of the United States Constitution.
    ``(b) DECLARATION.--The Senate's advice and consent is subject to 
the following declaration, which shall be binding on the President: 
TREATY INTERPRETATION.--The Senate affirms the application of all 
treaties of the constitutionally based principles of treaty 
interpretation set forth in Condition (1) of the resolution of 
ratification of the INF Treaty, approved by the Senate on May 27, 1988, 
and Condition (8) of the resolution of ratification of the Document 
Agreed Among the States Parties to the Treaty on Conventional Armed 
Forces in Europe, approved by the Senate on May 14, 1997.''
    These interpretative principles hold that: ``(A) the United States 
shall interpret a treaty in accordance with the common understanding of 
the Treaty shared by the President and the Senate at the time the 
Senate gave its advice and consent to ratification; (B) such common 
understanding is based on: (i) first, the text of the Treaty and the 
provisions of this resolution of ratification; and (ii) second, the 
authoritative representations which were provided by the President and 
his representatives to the Senate and its Committees, in seeking Senate 
consent to the ratification, insofar as such representations were 
directed to the meaning and legal effect of the text of the Treaty; (C) 
the United States shall not agree to or adopt an interpretation 
different from that common understanding except pursuant to Senate 
advice and consent to a subsequent treaty or protocol, or the enactment 
of a statute; and (D) if, subsequent to ratification of the Treaty, a 
question arises as to the interpretation of a provision of the Treaty 
on which no common understanding was reached in accordance with 
paragraph [B], that provision shall be interpreted in accordance with 
applicable United States law.'' Flank Document Agreement to the CRE 
Treaty, S. Exec. Rept. 105-1 at 23 (1997).
---------------------------------------------------------------------------
    Some agreements on mutual legal assistance have been 
concluded as executive agreements. The executive agreements 
have frequently been limited to a particular investigation or 
to a particular type of crime and have often served as the 
first step toward a more expansive MLAT. A drug information 
agreement with the United Kingdom and Cayman Island authorities 
on access to evidence needed in narcotics cases, signed July 
26, 1984, contained a section stating that if all parties were 
satisfied that the agreement worked satisfactorily, the 
negotiation of a full mutual legal assistance treaty would 
begin 9 months later. The treaty subsequently concerning the 
Cayman Islands were extended by diplomatic notes, constituting 
executive agreements, to the British Virgin Islands, Anguilla, 
Turks and Caicos Islands, on November 9, 1990, and to 
Montserrat on April 26, 1991.

                      E. Human Rights Conventions

     Since the end of the Second World War, a growing number of 
treaties have aimed at promoting human rights. On December 10, 
1948, the U.N. General Assembly adopted the Universal 
Declaration of Human Rights as a non-binding standard for all 
countries.\145\ Later, nations negotiated human rights 
covenants, or treaties, to make achievement of selected human 
rights a binding commitment.
---------------------------------------------------------------------------
    \145\ General Assembly Resolution 217 (III).
---------------------------------------------------------------------------
     Although the United States has been in the vanguard of 
observance of human rights, the issue of entering into legally 
binding human rights treaties has been controversial. While 
sometimes there is a difference on the nature of human rights 
to be guaranteed, often the controversy has extended to 
treaties guaranteeing human rights on which there is wide 
agreement. Various administration officials and Senators have 
contended that human rights should remain a matter of domestic 
jurisdiction and have expressed concern that internationally 
determined human rights could have an impact on rights of 
American citizens under the U.S. Constitution. They feared that 
since in the United States treaties are the law of the land, 
human rights treaties could supersede national and state laws. 
Other administration officials and Senators emphasized the 
value of the conventions in promoting human rights in other 
countries and believed that the United States should become a 
party to maintain its leadership in the human rights fields. 
They contended the United States usually had a higher standard 
of human rights than called for in the treaties, and in any 
event no international agreement could supersede rights 
guaranteed by the Constitution.
     Because of this controversy, the United States has not 
signed or ratified many human rights treaties, and some human 
rights treaties have been dormant in the Senate Foreign 
Relations Committee for many years. Of 50 multilateral treaties 
relating to human rights concluded in organizations such as the 
United Nations, the International Labor Organization (ILO), and 
the Organization of American States, the United States has 
ratified or acceded to 19.\146\ The United States has not 
signed or taken any action toward ratifying another 20. Three 
have been signed but not yet submitted to the Senate.\147\ 
Table XI-1 shows the seven human rights treaties still pending 
on the Foreign Relations Committee calendars, six pending for 
more than 10 years, and one of them the longest pending treaty 
on the calendar.
---------------------------------------------------------------------------
    \146\ For list and additional information, see The United States 
and International Human Rights Treaties: A Summary of Provisions and 
Status in the Ratification Process, by Vita Bite. CRS Report 95-191 F, 
January 20, 1995.
    \147\ Convention on Consent to Marriage, Minimum Age for Marriage 
and Registration of Marriages, adopted November 7, 1962, and signed 
December 10, 1962; Protocol Additional to the Geneva Conventions of 12 
August 1949, and Relating to the Protection of Victims of International 
Armed Conflicts (Protocol I), adopted June 10, 1977, and signed 
December 12, 1977; and Convention on the Rights of the Child, adopted 
November 20, 1989, and signed February 16, 1995.

    Table XI-1.--Human Rights Treaties Pending on the Senate Foreign
                      Relations Committee Calendar
------------------------------------------------------------------------
 Treaty
  No.            Date Pending                       Treaty
------------------------------------------------------------------------
  81-19  August 27, 1949............  ILO Convention No. 87 concerning
                                       freedom of association and
                                       protection of the right to
                                       organize, adopted July 10, 1948
  89-16  June 2, 1966...............  ILO Employment Policy Convention,
                                       adopted July 9, 1964
  95-19  February 23, 1978..........  International Covenant on
                                       Economic, Social and Cultural
                                       Rights, signed by the United
                                       States October 5, 1977
  95-21  February 23, 1977..........  American Convention on Human
                                       Rights, signed by the United
                                       States June 1, 1977
  96-53  November 12, 1980..........  Convention on the Elimination of
                                       All Forms of Discrimination
                                       Against Women, signed by the
                                       United States July 17, 1980
  100-2  January 29 1987............  Protocol II Additional to the
                                       Geneva Conventions of 12 August
                                       1949, and relating to the
                                       Protection of Victims of Non-
                                       International Armed Conflicts,
                                       concluded June 10, 1977
 106-37  July 25, 2000..............  Protocols to the Convention on the
                                       Rights of the Child, signed by
                                       the United States on July 5, 2000
------------------------------------------------------------------------

     Many observers felt that the approval of the Genocide 
Convention on February 19, 1986, the Convention Against Torture 
on October 27, 1990, and the International Covenant on Civil 
and Political Rights on April 2, 1992, signaled new progress in 
this area. Senate approval of these and other human rights 
treaties was achieved after negotiations among Senators and 
between the administration and the Senate Foreign Relations 
Committee on the types of conditions to be adopted.
    U.S. ratification of human rights treaties, more often than 
most other subject areas, has been subject to conditions, some 
added by the Senate but many proposed by the executive branch. 
In areas in which rights guaranteed in international 
conventions diverge from U.S. law, administrations usually 
propose specific conditions to clarify, and often limit, the 
obligation of the United States in these instances. While this 
usually facilitates Senate approval, and sometimes the Senate 
adds additional conditions of this nature, some observers in 
the human rights field contend that instead of adding a 
limiting condition, U.S. law should be brought into conformance 
with the international standard in those areas in which they 
believe the international standard is higher. For example, the 
Covenant on Civil and Political Rights prohibits the imposition 
of the death penalty for crimes committed by persons below the 
age of 18, and Amnesty International protested a reservation 
made at the request of the Bush Administration to permit 
capital punishment of juveniles.\148\
---------------------------------------------------------------------------
    \148\ Congressional Record, April 2, 1992, p. S4781 (daily ed.).
---------------------------------------------------------------------------
    In addition to conditions specific to each human rights 
treaty, general conditions have been adopted to alleviate the 
broader concern of the effect of treaties on domestic law, 
sometimes in response to administration request and sometimes 
on the initiative of the Senate.
    One general condition has often been added to deal with the 
Federal-state structure of the United States. This makes clear 
that the Federal Government will fulfill the U.S. obligation 
where it exercises jurisdiction and that it will take 
appropriate measures to ensure that states and localities take 
steps to fulfill the provisions.
    A second frequently added general condition is a 
declaration regarding the non-self-executing nature of the 
convention or parts of the convention. In this the United 
States declares that certain provisions are not self-executing, 
thus clarifying that the provisions of the convention would not 
of themselves become effective as domestic law.
    A third general condition sometimes added is a declaration 
that the United States will not deposit its instrument of 
ratification until after the implementing legislation has been 
enacted.
    Finally, the Senate has sometimes added a general condition 
``That nothing in the Convention requires or authorizes 
legislation or other action by the United States of America 
prohibited by the Constitution of the United States as 
interpreted by the United States.'' The ``as interpreted by the 
United States'' was intended to assure that the reservation 
would not permit the International Court of Justice or any 
other tribunal to determine what is permitted by U.S. 
constitutional law. This was incorporated in the resolution of 
ratification for the Genocide Convention, and 12 Western 
European nations filed written objections to the 
reservation.\149\ In the U.N. Convention Against Torture and 
the International Covenant on Civil and Political Rights, the 
Senate added the same statement as a proviso that was not to be 
included in the resolution of ratification, rather than a 
reservation.
---------------------------------------------------------------------------
    \149\ See also discussion of Mutual Legal Assistance Treaties, 
above.
---------------------------------------------------------------------------

                          genocide convention

    The Genocide Convention is an example of a treaty that 
encountered difficulty in obtaining Senate approval even though 
unanimity existed that genocide was an abhorrent crime. Pending 
in the Senate for 37 years, the Genocide Convention was 
approved on February 19, 1986.\150\ The Foreign Relations 
Committee reported the convention favorably with conditions in 
1970, 1971, 1973, 1976, and 1984. The Senate debated the 
convention on four occasions but did not vote on it, and twice 
cloture motions to bring it to a vote failed.
---------------------------------------------------------------------------
    \150\ Congressional Record, February 19, 1986, pp. S1355-S1381 
(daily ed.). Ex. O, 81st Cong., 1st Sess. Exec. Rept. 99-2, July 18, 
1985. The convention was adopted by the U.N. General Assembly on 
December 9, 1948, and submitted to the Senate by President Truman on 
June 16, 1949.
---------------------------------------------------------------------------
    The logjam was broken in 1985 when the Foreign Relations 
Committee adopted four new conditions in addition to four that 
had been previously recommended. The four previously 
recommended conditions were understandings on the meaning of 
specific provisions and a declaration that ratification would 
not be deposited until implementing legislation bad been 
enacted. The new conditions were:
        [Reservations]
          (1) That with reference to Article IX of the 
        Convention, before any dispute to which the United 
        States is a party may be submitted to the jurisdiction 
        of the International Court of Justice under this 
        article, the specific consent of the United States is 
        required in each case.
          (2) That nothing in the Convention requires or 
        authorizes legislation or other action by the United 
        States of America prohibited by the Constitution of the 
        United States as interpreted by the United States.
        [Understandings (1, 2, and 3 omitted)]
          (4) That acts in the course of armed conflicts 
        committed without the specific intent required by 
        Article II are not sufficient to constitute genocide as 
        defined in the convention.
          (5) That with regard to the reference to an 
        international penal tribunal in Article VI of the 
        Convention, the United States declares that it reserves 
        the right to effect its participation in any such 
        tribunal only by a treaty entered into specifically for 
        that purpose with the advice and consent of the Senate.

    Upon approval, the Senate also adopted S. Res. 347 stating 
the sense of the Senate that the President should seek to amend 
the convention by obtaining agreement to include politically 
motivated genocide. The resolution was adopted in lieu of 
adding this as a condition in the resolution of ratification. 
Implementation legislation was enacted in 1988. The convention 
entered into force for the United States on February 23, 
1989.\151\
---------------------------------------------------------------------------
    \151\ Genocide Convention Implementation Act, Public Law 100-602, 
signed November 4, 1988. The resolution of advice and consent, 
instrument of ratification, and proclamation of the Genocide Convention 
are reprinted in Appendix 9.
---------------------------------------------------------------------------

                           labor conventions

    The International Labor Organization (ILO), which was 
founded in 1919 and is now a specialized agency of the United 
Nations, has adopted more than 170 conventions. While some of 
these are technical and limited to a narrow sphere, many may be 
considered human rights treaties because they have the broad 
purpose of promoting the rights and welfare of labor.
    The United States has ratified about a dozen of these 
conventions, primarily maritime conventions. In 1980, President 
Carter established a Federal Advisory Committee to guide U.S. 
participation in the ILO including ratification of ILO 
conventions. That advisory committee established the Tripartite 
Advisory Panel on International Labor Standards (TAPILS) to 
advise on any legal impediments to U.S. ratification. In 1985 
the advisory committee adopted three rules to ``ensure that 
ratification of ILO conventions would not be used to change 
domestic labor law outside the normal legislative process.'' 
The rules provided:
          (1) Each ILO Convention will be examined on its 
        merits on a tripartite (labor, business, and 
        government) basis;
          (2) Any differences between the convention and 
        Federal law and practice will be dealt with in the 
        normal legislative process;
          (3) There is no intention to change State law and 
        practice through ratification of ILO conventions, and 
        examination of conventions will include possible 
        conflicts between Federal and State law caused by 
        ratification.

    Subsequently, the administration submitted and the Senate 
approved two ILO conventions, one with a declaration and one 
with five understandings, the first time since February 1953 
that the full Senate had considered an ILO convention.\152\
---------------------------------------------------------------------------
    \152\ Treaty Doc. 99-20, ILO Convention No. 144 concerning 
Tripartite Consultations to Promote the Implementation of International 
Labor Standards, adopted June 21, 1976. Submitted April 11, 1986. 
Reported with a declaration December 17, 1987, Exec. Rept. 100-11. 
Approved February 1, 1988. Treaty Doc. 99-21, ILO Convention No. 147 
Concerning Minimum Standards in Merchant Ships, adopted October 13, 
1976. Submitted April 11, 1986. Reported with five understandings, 18-
0, Exec. Rept. 100-12. Approved February 1, 1988.
---------------------------------------------------------------------------
    On May 14, 1991, the Senate approved the Convention 
Concerning the Abolition of Forced Labor which had been adopted 
by the International Labor Conference on June 25, 1957, and 
submitted to the Senate by President Kennedy in July 1963.\153\ 
Parties undertake to suppress and not use any form of forced 
labor as a means of political coercion, for economic 
development, for labor discipline, as a punishment for 
participation in strikes, or as a means of racial or religious 
discrimination. The Senate approved the convention with two 
understandings recommended by the Bush Administration. One, to 
deal with concerns about prison labor, stated that ratification 
was based on interpretations of the ILO Committee of Experts 
prior to that time, and subsequent interpretations would not be 
binding. The other, to deal with concern about strikes 
considered legal by the ILO but illegal under U.S. law, stated 
that the convention did not limit the contempt powers of courts 
under Federal and state law.
---------------------------------------------------------------------------
    \153\ Ex. K, 88-1. ILO Convention No. 105 concerning the abolition 
of forced labor, adopted June 25, 1957. Reported May 7, 1991, with two 
understandings. Exec. Rept. 102-7. Approved May 14, 1991.
---------------------------------------------------------------------------
    On November 5, 1999, the Senate approved ILO Convention 
182, for elimination of the worst forms of child labor. The 
treaty had been adopted by the ILO in June 1999 and submitted 
to the Foreign Relations Committee in August. After a hearing 
in October, the committee reported the convention on November 
3. The speed of consideration and approval by the Senate 
Foreign Relations Committee and the Senate was unprecedented 
for ILO conventions. During the hearing on the treaty, Chairman 
Helms gave credit to the treaty's negotiators who consulted 
regularly with members of the committee and committee staff. 
This ensured, according to the chairman, that the treaty was 
consistent with the U.S. Fair Labor Standards Act. ILO 
Convention 182 was the second of the eight ``core'' ILO labor 
standards conventions ratified by the United States.

                       convention against torture

    The Senate approved the Convention Against Torture and 
Other Cruel, Inhuman or Degrading Treatment or Punishment on 
October 27, 1990.\154\ The U.N. General Assembly adopted the 
convention on December 10, 1985. The convention requires 
parties to prevent torture within their jurisdiction and make 
it a punishable offense, and established a Committee Against 
Torture to investigate complaints if a state has recognized its 
competence. The United States had been active in its 
negotiation, and in 1984 Congress had passed a joint resolution 
sponsored by Senators Pell and Percy supporting U.S. 
participation in formulating international standards and 
effective implementing mechanisms against torture.
---------------------------------------------------------------------------
    \154\ Treaty Doc. 100-20. Signed by the United States on April 18, 
1988; submitted to the Senate May 20, 1988. Reported August 30, 1990, 
Exec. Rept. 101-30. Approved October 27, 1990.
---------------------------------------------------------------------------
    President Reagan submitted the convention to the Senate on 
May 20, 1988, with several proposed conditions. The Senate 
Foreign Relations Committee considered that the number and 
substance of the conditions recommended created the impression 
that the United States was not serious in its commitment to the 
convention, and on July 24, 1989, Chairman Pell expressed this 
concern. In January 1990, President Bush submitted a revised 
and reduced package that was a product of negotiations between 
the executive branch, the committee, and interested private 
groups. The proposed package consisted of three reservations, 
five understandings, and two declarations.
    The three reservations were a clause dealing with Federal-
state relations, a limitation of the meaning of ``cruel, 
inhuman or degrading treatment or punishment'' to punishment 
prohibited by the 5th, 8th, and/or 14th amendments of the U.S. 
Constitution, and a provision aimed at not accepting the 
compulsory jurisdiction of the International Court of Justice. 
The understandings dealt with specific obligations including 
that the United States did not understand the treaty to 
prohibit the death penalty. One of the two statements was that 
Articles 1 through 16 were not self-executing.
    Prior to the Senate vote on the convention, Senators Pell 
and Helms, the chairman and ranking minority member of the 
Foreign Relations Committee, reached agreement on four 
amendments to the resolution of ratification reported by the 
committee.
    Two amendments dealt with Federal-state relations. One 
eliminated the Federal-state reservation and another added the 
following as an understanding:
          (5) That the United States understands that this 
        Convention shall be implemented by, the United States 
        Government to the extent that it exercises legislative 
        and judicial jurisdiction over the matters covered by 
        the Convention and otherwise by the state and local 
        governments. Accordingly, in implementing Articles 10-
        14 and 16, the United States Government shall take 
        measures appropriate to the Federal system to the end 
        that the competent authorities of the constituent units 
        of the United States of America may take appropriate 
        measures for the fulfillment of the Convention.

    In another floor amendment, the Senate added the 
constitutional provision as a proviso, but not as a 
reservation. A reservation had been opposed by the 
administration and many members of the committee. The proviso 
stated that the President ``shall not deposit the instrument of 
ratification until such time as he has notified all prospective 
ratifying parties to this Convention that nothing in this 
Convention requires or authorizes legislation, or other action, 
by the United States of America prohibited by the Constitution 
of the United States as interpreted by the United States.'' 
\155\
---------------------------------------------------------------------------
    \155\ Congressional Record, October 27, 1990, p. S17492 (daily 
ed.).
---------------------------------------------------------------------------
    Legislation implementing the convention was included in the 
Foreign Relations Authorizations Act, fiscal years 1994 and 
1995 (Public Law 103-236) signed into law on April 30, 1994. 
The United States ratified the convention on October 21, 1994, 
and it entered into force for the United States on November 20, 
1994. The United States submitted its initial report on its 
compliance with the Convention to the Committee Against Torture 
on October 15, 1999.

                  civil and political rights covenant

    On April 2, 1992, the Senate gave its advice and consent to 
the International Covenant on Civil and Political Rights. In 
the covenant, parties undertake to respect and ensure rights 
including life, freedom of thought and religion, and freedom of 
expression. The covenant also establishes a Human Rights 
Committee to oversee compliance with the covenant's provisions 
and to receive and consider complaints from one party that 
another party has failed to fulfill its obligations.\156\
---------------------------------------------------------------------------
    \156\ Ex. E, 95-2. The United Nations adopted the covenant on 
December 1, 1966, and the United States signed it on October 5, 1977. 
President Carter transmitted it to the Senate on February 23, 1978. 
Approved by the Senate September 8, 1992. When the Senate approved the 
covenant, 103 nations had become parties.
---------------------------------------------------------------------------
    When President Carter submitted the covenant to the Senate 
on February 23, 1978, the administration recommended several 
statements, understandings, and reservations. The Senate 
Foreign Relations Committee held hearings in 1979, but took no 
further action at that time. In 1991, the Bush Administration 
proposed a new package of five reservations, five 
understandings, and four declarations similar in many respects 
to those suggested by the Carter Administration. These were 
included by the Senate in its resolution of ratification. To 
illustrate, the United States reserved the right, in 
exceptional circumstances, to treat juveniles as adults in the 
criminal justice system. Regarding Article 50, which stated 
that the provisions of the covenant ``shall extend to all parts 
of federal States without any limitations or exceptions,'' the 
United States expressed the following understanding:
          The United States understands that this Covenant 
        shall be implemented by the Federal Government to the 
        extent that it exercises jurisdiction over the matters 
        covered therein, and otherwise by the State and local 
        governments; to the extent that State and local 
        governments exercise jurisdiction over such matters, 
        the Federal Government shall take measures appropriate 
        to the Federal system to the end that the competent 
        authorities of the state or local governments may take 
        appropriate measures for the fulfillment of the 
        Covenant.

    Among the declarations, the United States declared that the 
provisions of Articles 1 through 27, dealing with rights 
guaranteed and activities prohibited by the covenant, were not 
self-executing.
    The Foreign Relations Committee, and later the Senate, also 
accepted the following proviso, offered by Senator Helms, with 
the explicit statement that it was not to be included in the 
instrument of ratification deposited by the President:
          Nothing in this Covenant requires or authorizes 
        legislation, or other action, by the United States of 
        America prohibited by the Constitution of the United 
        States as interpreted by the United States.

    The United States ratified the covenant on June 1, 1992, 
and it entered into force for the United States on September 8, 
1992. The United States submitted its initial report to the 
Committee on Human Rights on Compliance with the Covenant on 
July 29, 1994.

                    racial discrimination convention

    The Senate approved the International Convention on the 
Elimination of All Forms of Racial Discrimination on June 24, 
1994.\157\ The U.N. General Assembly adopted the convention on 
December 21, 1965. The convention requires parties to condemn 
and work to eliminate racial discrimination in all its forms. 
The convention also establishes a Committee on the Elimination 
of Racial Discrimination to review reports from parties about 
their implementation of the convention's provisions and to 
examine complaints by one party against another.
---------------------------------------------------------------------------
    \157\ Treaty Doc. 95-118. Signed by the United States on September 
28, 1966; submitted to the Senate on February 23, 1978. Reported May 
25, 1994, S. Exec. Rept. 103-29. Approved June 24, 1994.
---------------------------------------------------------------------------
    President Carter's submission of the convention to the 
Senate on February 23, 1978 recommended two reservations, one 
statement and one understanding. The Senate Committee on 
Foreign Relations held hearings in 1979, but took no further 
action on this treaty at that time. In 1994 the Clinton 
Administration proposed a new package of three reservations, 
one understanding and one declaration. On May 25, 1994, the 
committee favorably reported (S. Exec. Rept. 103-29) the 
convention with the conditions recommended by the 
administration, and added a proviso offered by Senator Helms 
which was to be included in the resolution of ratification, but 
not in the instrument of ratification. On June 24, 1994, the 
Senate approved ratification subject to three reservations: on 
free speech, private conduct, and the International Court of 
Justice; an understanding on Federal-state and local 
jurisdiction; a declaration that the treaty is not self-
executing; and a proviso on the U.S. Constitution.
    The United States ratified the convention on October 21, 
1994, and it entered into force for the United States on 
November 20, 1994. The United States submitted its initial 
report on U.S. implementation of the convention to the 
Committee on the Elimination of Racial Discrimination on 
September 21, 2000.

                      other human rights treaties

    The Clinton Administration signed the Convention on the 
Rights of the Child on February 16, 1995, but withheld 
submission to the Senate. Later the administration signed and 
submitted to the Senate two subsequently negotiated protocols 
to the Convention on the Rights of the Child: Optional Protocol 
on the Involvement of Children in Armed Conflict and Optional 
Protocol on the Sale of Children, Child Prostitution and Child 
Pornography.\158\
---------------------------------------------------------------------------
    \158\ The protocols are open to signature by countries which have 
ratified or signed the Convention on the Rights of the Child.
---------------------------------------------------------------------------
    The Clinton Administration signed the Statute of the 
International Criminal Court (ICC) on December 31, 2000, but 
did not submit it to the Senate.\159\ Congress has expressed 
its views on this treaty.\160\ Section 705 of Public Law 106-
113 prohibits U.S. adherence to the court except pursuant to a 
treaty, and also prohibits funding for use by, or in support of 
the court without Senate advice and consent to the treaty. 
Section 706 of this measure prohibits use of funds to extradite 
any U.S. citizen to a foreign country or third country that is 
under obligation to surrender individuals to the ICC unless 
such country can assure the United States that it will not 
transfer the individual to the court.
---------------------------------------------------------------------------
    \159\ Statement by the President regarding signature of the 
International Criminal Court Treaty. The White House. Office of the 
Press Secretary (Camp David, Maryland). December 31, 2000.
    \160\ This treaty requires ratifications (27 countries have 
ratified as of December 31, 2000) before it enters into force. Once 
established, the court will be empowered to investigate and try 
individuals for war crimes, crimes against humanity, and genocide. On 
July 17, 1998, at the conclusion of negotiations to draft an agreement 
on the court, the United States voted against adoption of the final 
text.


APPENDIX 1.--TREATIES AND OTHER INTERNATIONAL AGREEMENTS: AN ANNOTATED 
                            BIBLIOGRAPHY \1\
---------------------------------------------------------------------------

    \1\ Prepared by Sherry B. Shapiro, Information Resources Specialist 
of the Office of Information Resources Management. Ann Eschete of the 
Office of Information Resources Management produced the bibliography in 
its present form.
---------------------------------------------------------------------------
                              ----------                              

                            A. Introduction
    This selective, annotated bibliography lists English language 
books, articles, Federal and international documents, and other 
publications on issues regarding the making, implementation, and 
termination of treaties in light of U.S. and international law. With 
respect to international law, special attention is given to the Vienna 
Convention on the Law of Treaties and debate over its provisions. 
Concerning U.S. law, the emphasis is on executive-congressional 
relations in the making and termination of treaties and international 
agreements. A section on treaties and treaty collections focuses on 
resources useful in locating information on U.S. treaties throughout 
the treatymaking process, although a few selected compilations 
international in scope are identified. Guides to treaty collections and 
treaty research, which may be helpful in identifying additional 
resources, are also described.
           B. International Agreements and International Law
                              1. overview
a. General
Briggs, Herbert W. The travaux preparatoires of the Vienna Convention 
        on the Law of Treaties. American journal of international law, 
        v. 65, Oct. 1971: 705-712.
      Briggs discusses the importance of records pertaining to the 
        Vienna Convention on the Law of Treaties and reviews Shabtai 
        Rosenne's book: The Law of Treaties: A Guide to the Legislative 
        History of the Vienna Convention. Briggs also considers the 
        extent to which travaux preparatoires, including records of the 
        International Law Commission, might be used in interpreting the 
        provisions of the Vienna Convention.
Charme, Joni S. The interim obligation of article 18 of the Vienna 
        Convention on the Law of Treaties: making sense of an enigma. 
        George Washington journal of international law and economics, 
        v. 25, no. 1, 1991: 71-114.
      ``This article is an attempt to provide a constructive 
        understanding of the purpose, content and force of this 
        enigmatic provision. More specifically, the article first 
        inquires into the binding quality of article 18. Next, the 
        article explores the operative motivations and intentions of 
        the drafters of article 18.''
Deutsch, Eberhard P. Vienna Convention on the Law of Treaties. Notre 
        Dame lawyer, v. 47, Dec. 1971: 297-303.
      In concluding this brief survey, Deutsch writes: ``The foregoing 
        brief outline of the more important phases of the Vienna 
        Convention on the Law of Treaties, and of a few of the 
        interesting problems to which it may well give rise, should 
        suffice to indicate its overall vast scope and significance.''
Elias, T.D. The modern law of treaties. Dobbs Ferry, N.Y., Ocean 
        Publications, 1974. 272 p.
      The author explains: Each chapter first examines the ``evolution 
        of the underlying juristice notions as adumbrated by 
        publicists, then * * * consider [s] any relevant judicial or 
        arbitral decisions, and finally * * * summarize [s] the 
        position taken by the International Law Commission after a full 
        and careful consideration of the comments of Governments.''
Frankowska, Maria. The Vienna Convention on the Law of Treaties before 
        United States courts. Virginia journal of international law, v. 
        28, winter 1988: 281-391.
      ``This Article addresses the national courts' role in applying 
        international law * * *. The law of treaties plays a 
        significant role on the domestic level * * *. It is applied by 
        national courts more often than any other rules of 
        international law.''
Kearney, Richard D. Dalton, Robert E. The treaty on treaties. American 
        journal of international law, v. 64, July 1970: 495-561.
      Ambassador Kearney, who led the United States delegation at the 
        Vienna Conference, and Dalton identify the Vienna Convention on 
        the Law of Treaties as ``the first essential element of 
        infrastructure that has been worked out in the enormous task of 
        codifying international law pursuant to Article 13 of the 
        United Nations Charter.'' They review the development, by the 
        International Legal Commission, of the 75 draft articles which 
        served as the working text for the Vienna Conference. Kearney 
        and Dalton then examine consideration of the draft by 
        representatives at the conference. They analyze the provisions 
        of the Vienna Convention, tracing the development of specific 
        articles by discussing the debates which influenced their 
        content and form, examining the purpose and interpretation of 
        those articles, and evaluating the achievements of the 
        Convention as a whole.
McNair, Arnold Duncan. The law of treaties. Oxford, Clarendon Press, 
        1961. 789 p.
      Partial contents.--The conclusion of treaties.--The scope and 
        operation of treaties.--Interpretation and application of 
        treaties.--Termination of treaties.--Breach of treaty.--State 
        succession and other changes.--Effects of war.
Menon, P.K. The law of treaties between states and international 
        organizations. Lewiston, N.Y., Edwin Mellen Press,  
        1992. 259 p.
Morgenstern, Felice. International legislation at the crossroads. 
        British year book of international law, v. 49, 1978: 101-117.
      Morgenstern discusses the scope of international legislation, as 
        well as its appropriateness and importance. The term 
        international legislation ``is used loosely, to cover all 
        international instruments susceptible of creating legal 
        obligations by virtue of their adoption, signature or 
        ratification (or accession thereto), which establish uniform, 
        harmonized or minimum principles or rules of conduct rather 
        than contractual mutuality between parties, and which are 
        applicable or potentially applicable to a plurality of 
        States.'' Morgenstern also considers amendment, revision, 
        consolidation and abrogation of international legislation, 
        means of avoiding conflict among international law--creating 
        instruments, and problems of unilateral withdrawal from 
        international obligations.
Rosenne, Shabtai. Bilateralism and community interest in the codified 
        law of treaties. In Transnational law in a changing society; 
        essays in honor of Philip C. Jessup. Edited by Wolfgang 
        Friedman, Louis Henkin, and Olifver Lissitzyn. New York, 
        Columbia University Press, 1972. pp. 202-227.
      ``In this article, an attempt will be made to survey the codified 
        law of treaties, now embodied in the Vienna Convention on the 
        Law of Treaties of May 23, 1969, and to evaluate it in terms of 
        the balance struck between the interrelation inter se of the 
        mutual interests of the parties to a treaty on the one hand, 
        and the community interest in that treaty, its object and 
        purpose, its application, and the resolution of differences 
        arising out of it on the other hand.''
------. Developments in the law of treaties, 1945-1986. New York, 
        Cambridge University Press, 1989. 535 p. (Cambridge studies in 
        international and comparative law. New series)
------. The law of treaties; a guide to the legislative history of the 
        Vienna Convention. Dobbs Ferry, N.Y., Oceana Publications, 
        1970. 443 p.
      Rosenne was Deputy Permanent Representative of Israel to the 
        United Nations, Chairman of the Delegation to the Conference on 
        the Law of Treaties, and a member of the International Law 
        Commission. In the introduction to this work, he discusses the 
        codification of the law of treaties, considering ``i) how the 
        topic ever came to be chosen in the first place; ii) its scope; 
        iii) what kind of problems confronted the political organs 
        after the International Law Commission had finished its work; 
        and iv) the organization and functioning of the Vienna 
        Conference.''
      Rosenne provides, in parallel columns, the final text of the 
        International Law Commission's 1966 draft articles on the Law 
        of Treaties and the text of the articles of the Vienna 
        Convention in English, French, and Spanish, so readers can note 
        changes introduced during the Vienna Conference and can compare 
        different language versions. Rosenne also provides the 
        legislative history of each article of the Vienna Convention 
        indicating the introduction of each theme, the meetings at 
        which it was discussed, and the outcome. ``References are made 
        exclusively to the meeting and paragraph numbers as these 
        appear in the appropriate volumes of the Yearbook of the 
        International Law Commission, the Official Records of the 
        General Assembly, and the Official records of the Vienna 
        Conference on the Law of Treaties.''
Sinclair, Ian McTaggart. The Vienna Convention on the Law of Treaties. 
        Dobbs Ferry, N.Y., Ocean Publications, 1973. 150 p. (The 
        Melland Schill lectures)
      Contents.--The scope of the Convention and its relationship to 
        customary law.--The conclusion and entry into force of 
        treaties.--The application, interpretation, amendment and 
        modification of treaties.--The invalidity, termination and 
        suspension of operation of treaties.--Jus congens and the 
        settlement of disputes.
Stanford, J.S. The Vienna Convention on the Law of Treaties. University 
        of Toronto law journal, v. 20, no. 1, 1970: 18-47.
      This article ``first discusses the major political issues 
        confronted by the conference, for it was upon the resolution of 
        these issues that the success or failure of the conference 
        turned. The article then examines the Convention itself, with 
        particular reference to the changes made by the conference to 
        the draft articles proposed by the International Law 
        Commission. While most of the time of the conference was 
        devoted to resolving the legal issues raised by the various 
        draft articles, two major political issues dominated the 
        conference, particularly at the second session, and came within 
        a hair's breadth of bringing about its failure. These issues 
        were: first, universal participation in general multilateral 
        treaties, and second, the procedures for the peaceful 
        settlement of disputes arising out of the application of the 
        articles in the Convention which establish grounds for the 
        invalidity, termination, suspension, or withdrawal from 
        treaties.''
United Nations. International Law Commission. Yearbook of the 
        International Law Commission. New York, The Commission, 1949.
United Nations Conference on the Law of Treaties, 2d Vienna, 1969.
      Official records; summary records of the plenary meetings and of 
        the meetings of the Committee of the Whole. New York, United 
        Nations, 1970. 350 p. (United Nations. Document A/CONF.39/
        11Add.1) ``United Nations publication. Sales no.: E. 70. v. 6''
U.S. President, 1969-1974 (Nixon). Vienna Convention on the Law of 
        Treaties. Message from the President of the United States, 
        transmitting the Vienna Convention on the Law of Treaties 
        signed for the United States on April 24, 1970. Washington, 
        U.S. Government Printing Office, 1971. 40 p.
      At head of title: 92d Congress, 1st Session. Senate. Executive L
      Includes the report of the Secretary of State, Oct. 18, 1971, 
        describing the major provisions of the Vienna Convention, as 
        well as a copy of the Convention.
The Vienna Convention on the Law of Treaties: travaux preparatoires--
        Die Wiener Vertragsrechtskonvention: Materilien zur Entstehung 
        d. einzelnen Vorschr. Hrsg., Inst. fur Internat. 
        Angelegenheiten d. Univ. Hamburg; Inst. fur Internat. Recht an 
        d. Univ. Kiel; Inst. fur Volkerrecht d. Univ. Gottingen. 
        Compiled by Ralf Gunter Wetzel; edited and prefaced by Dietrich 
        Rauschning. Frankfurt am Main, Metzner, 1978. 543 p. 
        (Dokumente-Institut fur Internationale Angelegenheiten der 
        Universitat Hamburg; Bd. 44)
      ``The present documentation aims at providing those materials 
        essential for the theoretical study and practical use of the 
        individual articles [of the Vienna Convention]: in order to 
        elucidate the history of the laborious development of the 
        Convention text, each article is followed by the full text of 
        all previous versions since the Waldock Report. The general 
        attitude of the individual States during the ILC [International 
        Law Commission] phase is documented in the summaries of the 
        second series of Waldock Reports. The ILC interpretation of the 
        contents of the Convention is found in the Commentary to the 
        articles of the Final Draft which the ILC itself adopted. 
        Outlines, a synopsis and a bibliography should facilitate the 
        scholarly and practical use'' of this documentation. The text 
        is in English, with German translations provided for some 
        documents.
Villiger, Mark Eugen. Customary international law and treaties: a study 
        of their interactions and interrelations, with special 
        consideration of the 1969 Vienna Convention on the Law of 
        Treaties. Boston, M. Nijoff; Hingham, Mass., Distributors for 
        the U.S. and Canada, Kluwer Academic, 1985. 432 p. 
        (Developments in international law)
      Originally presented as the author's Habilitationschrift 
        (University of Zurich).
Widdows, Kelvin. What is an agreement in international law? British 
        year book of international law, v. 50, 1979: 117-149.
      This article ``is concerned with the term `treaty' in its 
        broadest sense. It is an enquiry into the elements comprising a 
        binding international agreement.''
Wilson, Robert R. The international law standard in recent treaties and 
        agreements of the United States. American journal of 
        international law, v. 66, July 1972: 526-536.
      ``The record of treaties and other international agreements which 
        the United States has concluded in the period of two decades 
        ending in 1971 provides much evidence of the specification of 
        international law as a basic standard * * *. For the present 
        purpose it is proposed to consider briefly 1) types of 
        compromissory clauses in agreements to which the United States 
        is a party and in which there are specific references to 
        international law, 2) illustrative agreements in bilateral form 
        concerning the guaranty of foreign investments, 3) multilateral 
        agreements concerning the application of international law as a 
        standard, without statement as to what the law is, 4) bilateral 
        agreements other than those related to the guaranty of foreign 
        investment, and 5) the possible relevance of such agreement-
        making to the better understanding and development of 
        international law.''
Wozencraft, Frank M. United Nations arithmetic and the Vienna 
        Conference on the Law of Treaties. International lawyer, v. 6, 
        Apr. 1972: 205-218.
      Wozencraft, a member of the U.S. delegation to the 1968 session 
        of the Vienna Conference on the Law of Treaties, reports on the 
        negotiating and decisionmaking process at the Vienna Conference 
        and describes a day in the life of a U.S. delegate to the 
        Conference. He considers controversies which arise from the 
        U.N. principle that each sovereign nation has an equal vote, 
        regardless of size or importance. Wozencraft also reviews U.S. 
        policymaking procedures and assesses the importance of the 
        Conference. This article is based on an address Wozencraft gave 
        on June 6, 1969 at the Institute on the Law of Treaties, 
        cosponsored by the Division of International Law and Foreign 
        Trade at the Law Center of the University of Missouri-Kansas 
        City, and the American Society of International Law.
b. Treaties and agreements involving international organizations
Agreements of international organizations and the Vienna Convention on 
        the Law of Treaties. Edited by K. Zemanek, assisted by L.R. 
        Behrmann. New York, Springer-Verlag, 1971. 268 p.
      Papers prepared as a result of research conducted at the 1969 
        session of the Center for Studies and Research, Hague Academy 
        of International Law.
      Contents.--Co-operation agreements and the law relating to 
        agreements concluded by international organizations, by D. 
        McRae.--The capacity of international organizations to conclude 
        headquarter agreements, and some features of these agreements, 
        by L. Bota.--Formal aspects of the technical assistance 
        agreements concluded by the UN family of organizations, by J. 
        van Wouw.--The capacity of international organizations to 
        conclude treaties, by G. Hartmann.--The concept and forms of 
        treaties conclude by international organizations, by C. 
        Osakwe.--Organs competent to conclude treaties for 
        international organizations and the internal procedure leading 
        to the decision to be bound by a treaty; Negotiation and 
        conclusion of treaties by international organizations, by H. 
        Neuhold.
Reuter, Paul. First report on the question of treaties concluded 
        between states and international organizations or between two 
        or more international organizations. New York, United Nations, 
        1972. 61 p. (United Nations. Document A/CN.4/258)
      At head of title: United Nations General Assembly.
United Nations. International Law Commission. The question of treaties 
        concluded between states and international organizations or 
        between two or more international organizations. [New York] 
        United Nations, 1970. 116 p. (United Nations. Document A/CN.4/
        L.161)
      Working paper submitted by the Secretary-General containing a 
        short bibliography, a historical survey of the question and a 
        preliminary list of the relevant treaties published in the 
        United Nations treaty series.
United Nations. Secretariat. Question of treaties concluded between 
        states and international organizations or between two or more 
        international organizations; possibilities of participation by 
        the United Nations in international agreements on behalf of a 
        territory. New York, United Nations, 1974. 56 p. (United 
        Nations. Document A/CN.4/281)
      At head of title: United Nations General Assembly.
United Nations. Secretary-General, 1961-1971 (Thant). The question of 
        treaties concluded between states and international 
        organizations or between two or more international 
        organizations. [New York] United Nations, 1971. 70 p. (United 
        Nations. Document A/CN.4/L.161/Add.1)
      ``Working paper submitted by the Secretary-General, containing a 
        short bibliography, a historical survey of the question and a 
        preliminary list of the relevant treaties published in the 
        United Nations Treaty Series.''
 2. negotiation and conclusion of treaties and international agreements
a. Negotiation and the treatymaking process
            (1) General
Guzman, Andrew T. Why LDCs sign treaties that hurt them: explaining the 
        popularity of bilateral investment treaties. Virginia journal 
        of international law, v. 47, summer 1998: 639-688.
      Says there has been little analysis of the impact of bilateral 
        investment treaties (BITs) ``on the welfare of the countries 
        that have signed them. This article seeks to address this large 
        gap in the literature and contribute to a more coherent 
        understanding of BITs, their impact on foreign investment, and 
        their effect on the welfare of nations.''
Hassan, Tariq. Good faith in treaty formation. Virginia journal of 
        international law, v. 21, spring 1981: 443-481.
      In this article the author ``examines the content and limitations 
        of good faith in international law as well as the developments 
        leading up to its inclusion in the 1969 Vienna Convention on 
        the Law of Treaties. The article next analyzes the application 
        of this principle to the treaty formation process.''
Kearney, Richard D. International legislation: the negotiation process. 
        California Western international law journal, v. 9, summer 
        1979: 504-513.
      ``The United States should view the development of world law as 
        important to our nation's interests and take into account the 
        necessity of preventing world law from slipping into procedures 
        and forms which may later prove to be intolerable to us. The 
        negotiating process is one of the areas in which care must be 
        taken to ensure that the development of world law is not 
        undermined for short-range and dubious objectives.''
Sanders, David. Changing role of parliament: international treaties to 
        be examined before ratification. Parliamentarian, v. 79, Oct. 
        1998: 385-387.
      ``The Clerk of the New Zealand Foreign Affairs, Defense and Trade 
        Committee describes a new process whereby international 
        treaties can now be scrutinized by Parliament before they are 
        ratified, and highlights the problem of secrecy by 
        international organizations when scrutiny is attempted.''
The Treaty maker's handbook. Hans Blix and Jirina H. Emerson, editors. 
        Dobbs Ferry, N.Y., Oceana Publications, 1973. 355 p.
      This is an expanded and revised edition of a compilation of 
        passages from treaties which exemplify several types of 
        constitutional rules relating to formal treaty provisions. The 
        material was originally prepared for use at seminars on the law 
        of treaties. The seminars were arranged by the Dag Hammarskjold 
        Foundation and held in Uppsala in 1966 and 1967.
      Partial contents.--Constitutional provisions on the conclusion 
        and application of treaties.--Full powers.--Preambles.--Consent 
        to be bound.--State succession.--Entry into force.--
        Participation clauses.--Duration.--Withdrawal, denunciation and 
        termination. Clauses on interpretation, application and 
        settlement of disputes.--Clauses on enforcement, breach, 
        suspension and expulsion.--Territorial application.--Internal 
        application.--Reservations.--Clauses on relationship to other 
        treaties.--Amendment clauses.--Revision clauses.--Depositary 
        functions.--Types of treaties and instruments resembling 
        treaties.--Vienna Convention on the Law of Treaties.
            (2) Multilateral treaties
Bourguignon, Henry J. The Beliolos case: new light on reservations to 
        multilateral treaties. Virginia journal of international law, 
        v. 29, winter 1989: 347-386.
      ``This article first discusses the historical context of 
        reservations in international law and its influence on the 
        drafters of the European Convention on Human Rights. It then 
        discusses the Belilos Case, the arguments of the Swiss 
        government and the decision of the court. The article concludes 
        with a discussion of the effects this decision will have on 
        future disputes on the status of treaty reservations in 
        international law.''
Gamble, John King, Jr. Multilateral treaties: the significance of the 
        name of the instrument. California Western international law 
        journal, v. 10, winter 1980: 1-24.
      ``The Vienna Convention on the Law of Treaties * * * addresses 
        the law of treaties and hence de-emphasizes state practice, 
        which is an important aspect of treaty-making * * *. The focus 
        here will be on all multilateral treaties entering into force 
        between 1919 and 1971, specifically those appearing in the 
        League of Nations Treaty Series and the United Nations Treaty 
        Series. The ability to look macroscopically at fifty years of 
        multilateral treaty-making permits certain questions to be 
        addressed * * *. One example of this macroscopic perspective 
        concerns the name of the instrument in the case of multilateral 
        treaties.''
Multilateral treaties: index and current status. Compiled and annotated 
        within the University of Nottingham Treaty Centre by M.J. 
        Bowman and D.J. Harris. St. Paul, Minn., Mason Pub. Co., 1984. 
        516 p.
United Nations. Secretary-General, 1972-1981 (Waldheim). Review of the 
        multilateral treaty-making process. [New York] United Nations, 
        1981. 66, 7, 2, 18, 4 p.
      At head of title: United Nations General Assembly.
------. Review of the multilateral treaty-making process. [New York] 
        United Nations, 1980. 37, 41, 54 p. (United Nations. 
        Document[s] A/35/312; A/35/312/ Add.1; A/35/312/Add.2)
World Peace Through Law Center. Multilateral treaties, conventions, 
        protocols and agreements of the United Nations and the 
        specialized agencies. (List) prepared to accompany the address 
        of Earl Warren * * * to the Geneva World Conference on World 
        Peace through Law, July 9-14, 1967. Geneva, World Peace through 
        Law Center, [1967] 44 p.
b. Amendments, interpretive declarations, and reservations
Adede, A.O. Amendment procedures for conventions with technical 
        annexes: the IMCO experience. Virginia journal of international 
        law, v. 17, winter 1977: 201-215.
      This article examines the experience of the Intergovernmental 
        Maritime Consultative Organization with technical conventions 
        in the maritime field which ``led it to conclude that different 
        procedures should be established to amend the technical annexes 
        or appendices to a convention than those used to amend the 
        basic provisions contained in the main articles of a 
        convention.''
Gamble, John King, Jr. Reservations to multilateral treaties: a 
        macroscopic view of state practice. American journal of 
        international law, v. 74, Apr. 1980: 372-394.
      ``State practice in the area of reservations is surveyed, in very 
        general terms, for the period from 1919 to 1971. The post-World 
        War II period (1947-1971) will be examined in somewhat more 
        detail in order to classify and categorize reservations. 
        Adopting a broad (rather than a narrow) view of all 
        multilateral treaties permits a more accurate overall 
        assessment of the constructiveness of the role played by 
        reservations.''
Gormley, W. Paul. The modification of multilateral conventions by means 
        of ``negotiated reservations'' and other ``alternatives'': a 
        comparative study of the ILO and Council of Europe. Fordham law 
        review, v. 34, Oct. 1970: 59-80; v. 39, Mar. 1971: 413-446.
      ``Although the special techniques developed within the ILO 
        [International Labour Organization] and Council of Europe will 
        not be adopted by the world community, it is possible that some 
        help, or at least insight, may be gained from an examination of 
        the unique procedures used by these two organizations * * *.
      ``The specific purpose of this study is first, to examine the use 
        of the flexibility device as an alternative (to the typical 
        reservation) originally developed by ILO but later adopted by 
        the Council; and secondly, to trace the evolution of the 
        negotiated reservation subsequently emerging in the Council of 
        Europe, which grew out of earlier concepts.''
Inter-American Juridical Committee. Reservation of theoretical 
        adherence to multilateral treaties. Report prepared in 
        accordance with Resolution XI of the fourth meeting of the 
        Inter-American Council of Jurists. Washington, Pan American 
        Union, 1961. 5 p.
Koh, Jean Kyongun. Reservations to multilateral treaties: how 
        international legal doctrine reflects world vision. Harvard 
        international law journal, v. 23, spring 1982: 71-116.
      ``By examining the evolution of the doctrine of reservations in 
        this century, this Comment * * * [explores] how the successive 
        versions of the doctrine reflect the changing conception of 
        multilateral conventions, and * * * [illustrates] how a tiny 
        nugget of treaty law provides a battleground for the clash 
        between two basic opposing visions of the world: a world 
        composed of autonomous states versus an integrated world 
        order.''
McRae, D.M. The legal effect of interpretative declarations. British 
        year book of international law, v. 49, 1978: 155-173.
      ``The issue, then, is whether an interpretative declaration, 
        which by virtue of Article 2(1)(d) of the Vienna Convention is 
        not a `reservation,' has any legal significance. Should other 
        parties to the treaty, faced with an interpretative declaration 
        attached to an instrument of ratification or accession, ignore 
        it, or accept or reject it, depending on whether they agree or 
        disagree with it? What is the consequences of any of these 
        actions?''
Mendelson, M. H. Reservations to the constitutions of international 
        organizations. British year book of international law, v. 42, 
        1971: 137-171.
      ``It is the purpose of this article to explore the law and 
        practice on reservations to the constitutions of the relatively 
        homogeneous group of organizations: the League of Nations, the 
        United Nations and the Specialized Agencies of the United 
        Nations.''
Sztucki, Jerzy. Some questions arising from reservations to the Vienna 
        Convention on the Law of Treaties. German yearbook of 
        international law, v. 20, 1977: 277-305.
      ``Space limits compel the author to confine the present remarks 
        to some selected questions which either are specific for the 
        Convention under consideration or appear to have come into 
        prominence in its context, namely: the question of self-
        applicability of the Convention regime of reservations, 
        questions arising from reservations to Art. 66, and the 
        question of separability of treaty provisions in the process of 
        concluding treaties.''
c. Acceptance, depositary, registration and publication
            (1) Acceptance
Ruda, Jose Maria. The final acceptance of international conventions. 
        Muscatine, Iowa, Stanley Foundation, 1976. 29 p.
      The author, a Justice on the International Court of Justice, 
        discusses the pace accomplished in securing final acceptance of 
        treaties. He writes, ``States get actively engaged in the 
        preparation of conferences or in long debates in international 
        organizations drawing up multilateral conventions. They even 
        sign the documents without much hesitation; however the same 
        States are reluctant or slow in assuming international 
        obligations by ratifying or acceding to the instruments, except 
        in cases where a direct political interest of the State is at 
        stake.'' Ruda reviews why there are delays in securing 
        acceptance of treaties, and he proposes actions on the 
        international and national level which might facilitate treaty 
        acceptance.
United Nations Institute for Training and Research. Wider acceptance of 
        multilateral treaties. New York, The Institute, 1969. 213 p.
      ``This study ascertains empirically to what extent the extrinsic 
        factors, such as constitutional-parliamentary procedures, 
        administrative mechanics, personnel requirements, translation 
        facilities, `final' clauses, and others operate as impediments 
        to acceptance. It also describe to what extent lack of 
        `definitive succession' has impaired the continued application 
        of treaties extended by the predecessor Governments * * *. The 
        study analyzes and describes the range of national and 
        international measures for the wider acceptance of treaties 
        which include, among others, appeals and exhortation, provision 
        of advisory services and technical assistance, wider 
        dissemination of information, revision of treaties and special 
        national administrative machinery for treaty work.''
            (2) Depositary
Rosenne, Shabtai. The depositary of international treaties. American 
        journal of international law, v. 61, Oct. 1967: 923-945.
      The ``International Law Commission's Draft Articles on the Law of 
        Treaties contain three articles--articles 71, 72, and 73--
        dealing directly with the depositary of an international 
        treaty; and throughout the Draft Articles are to be found other 
        provisions which directly or indirectly relate to the same 
        institution of contemporary international law and relations * * 
        *. This is of particular significance in relation to the very 
        important and practical matter of the time from which a treaty 
        enters into force or terminates, whether generally or in 
        relation to a particular state, or as from which other action 
        relating to a treaty takes legal effect in relation to the 
        other parties to that treaty. Taken together, all these 
        provisions place into a sharper focus than previously the 
        juridical characteristics of the role and functions of the 
        depositary in modern international law, and the prolonged 
        discussions in the International Law Commission, especially on 
        what is now Article 73, brought to light many difficult 
        practical questions requiring solution.''
------. More on the depositary of international treaties. American 
        journal of international law, v. 64, Oct. 1970: 838-852.
      ``The purpose of this article is to bring up to date * * * The 
        Depositary of International Treaties * * * in the light of the 
        deliberations of the United Nations Conference on the Law of 
        Treaties in 1968 and 1969 and the changes there made in the 
        texts. The relevant provisions now appear as Articles 76, 77, 
        and 78 of the so-called Vienna Convention on the Law of 
        Treaties, corresponding to Articles 71, 72 and 73 of the draft 
        articles on the Law of Treaties of the International Law 
        Commission.''
            (3) Registration and publication
Tabory, Mala. Recent developments in United Nations treaty registration 
        and publication practices. American journal of international 
        law, v. 76, Apr. 1982: 350-363.
      ``The framework for the systemactic registration and publication 
        of international agreements on an intergovernmental level was 
        set * * * in Article 102 of the United Nations Charter * * *. 
        The United Nations has devoted considerable effort to the 
        implementation of Article 102 by developing a set of 
        Regulations to put into operation the registration and 
        publication functions * * *. The Treaty Section of the Office 
        of Legal Affairs in the UN Secretariat carries out the 
        functions of registration and publication of treaties and 
        international agreements.''
                          3. entry into force
Reiff, Henry. The proclaiming of treaties in the United States. 
        American journal of international law, v. 44, July 1940: 572-
        576.
      ``The present writer in an article in the journal in January, 
        1936, concluded that the proclaiming of treaties is not 
        essential to their validity as law of the land; that treaties 
        become effective domestically when they come into force 
        internationally; and that the President's proclamation serves 
        to announce facts with regard to the perfecting of the treaty 
        internationally and to enjoin obedience. Dr. [Hunter] Miller 
        concurred in those conclusions and not only supplied additional 
        historical data in support of them but also extended the 
        discussion of the central problem, examined in that article. 
        The gist of these data and observations is given'' in this 
        article.
Rogoff, Martin A. The international legal obligations of signatories to 
        an unratified treaty. Maine law review, v. 32, no. 2, 1980: 
        263-299.
      ``It is the thesis of this Article that general international law 
        imposes on the signatories to a treaty the obligation not to 
        defeat the object and purpose of that treaty prior to its entry 
        into force * * *. After examining the existence and nature of 
        the obligation, the Article concludes with a discussion of the 
        content of the obligation and attempts to discern its contours 
        and extent.''
Rosenne, Shabtai. The temporal application of the Vienna Convention on 
        the Law of Treaties. Cornell international law journal, v. 4, 
        fall 1970: 1-24.
      ``Any examination of the Vienna Convention on the Law of Treaties 
        of 23 May 1969 must commence by recalling the obvious truism 
        that this Convention is never applied alone, but always in 
        conjunction with another treaty for which it may supply 
        residual rules * * *. Our major concern here is the temporal 
        relativity of the Vienna Convention in relation to another 
        treaty, the rules for the temporal conflict of laws. An 
        examination of this aspect will demonstrate that it is 
        insufficient to speak merely of the retroactivity or the non-
        retroactivity of the Vienna Convention. In each case, one must 
        establish the space of time within which any one of the rules 
        contained in the Convention controls another treaty, whether 
        absolutely, as a residual rule, or as a matter of procedure.
      ``The foregoing leads to the conclusion that the Vienna 
        Convention on the whole speaks not ex tunc, from some 
        unascertainable date in the future, but from the date of its 
        formulation. The nature, object and purpose of the Vienna 
        Convention, together with the specific terms of article 4, 
        require minimizing and not maximizing the negativing effect of 
        that article, to the extent consonant with good faith and the 
        intention of the negotiating states.''
Rubin, Alfred P. The international legal effects of unilateral 
        declarations. American journal of international law, v. 71, 
        Jan. 1977: 1-30.
      ``When the ICJ [International Court of Justice] formulates a rule 
        of international law giving binding force to a unilateral 
        declaration of a state's future intentions, statesmen may be 
        expected to refer to that formulation for guidance whenever 
        they consider the possibility of issuing a declaration of 
        future policy * * *.
      ``The Court applied the asserted rule to a series of unilateral 
        declarations by France concerning the French intention to 
        abstain from future atmospheric nuclear tests in the South 
        Pacific area, holding that the Australian application, asking 
        the Court to adjudge that `the carrying out of further 
        atmospheric nuclear weapons tests in the South Pacific Ocean is 
        not consistent with applicable rules of international law,' and 
        the New Zealand application asking the Court to adjudge `that 
        the conduct by the French government of nuclear tests in the 
        South Pacific region that give rise to radioactive fallout 
        constitutes a violation of New Zealand's rights under 
        international law,' each presented a `claim * * * [that] no 
        longer has any object.'
      ``This article will examine the asserted rule in some detail as a 
        statement of a purported norm of general international law and 
        as applied to the facts in the Nuclear Tests cases, and will 
        conclude by pointing out some implications of these cases for 
        the future of the Court.''
Schachter, Oscar. The twilight existence of nonbinding international 
        agreements. American journal of international law, v. 71, Apr. 
        1977: 296-304.
      This editorial comment urges recognition of the role that 
        nonbinding agreements, such as the Final Act of the Conference 
        on Security and Cooperation in Europe, can play in the 
        international legal order, since nonbinding agreements are 
        sometimes attainable when binding treaties are not.
Schmidt, Markus G. Individual human rights complaints procedures based 
        on United Nations treaties and the need for reform. 
        International and comparative law quarterly, v. 41, July 1992: 
        645-659.
      ``The right of individuals to complain about alleged violations 
        of their human rights to expert bodies established under United 
        Nations human rights instruments is one of the major 
        achievements of UN efforts * * *. Three expert committees 
        currently implement treaty-based individual complaints 
        procedures: the Human Rights Committee, the Committee on the 
        Elimination of Racial Discrimination * * * and the Committee 
        against Torture * * *. With some degree of simplification, 
        individual complaints registered under one of the above 
        procedures are considered in three stages.''
Vazquez, Carlos Manuel. Treaty-based rights and remedies of 
        individuals. Columbia law review, v. 92, June 1992: 1082-1163.
      ``This article examines what is meant by the statement that 
        individuals do not have rights under treaties as a matter of 
        international law * * *. Individuals lack the power to set in 
        motion the machinery of international law for enforcing treaty 
        obligations.''
Vierdag, E. W. The law governing treaty relations between parties to 
        the Vienna Convention on the Law of Treaties and states not 
        party to the Convention. American journal of international law, 
        v. 76, Oct. 1982: 779-801.
      ``The likelihood that numerous treaties will be concluded between 
        states that are not parties to the Convention poses the 
        following question: if Article 4 is not a general participation 
        clause, then what law does govern such treaties? We will 
        attempt to answer this question by examining the meaning of 
        article 4, and to that end, by first tracing its origins. We 
        will then consider the provision, hypothetically, as a general 
        participation clause and point out some of the consequences of 
        this interpretation. Next we will inquire whether Article 4 
        should rather be understood as allowing the application of the 
        convention to a treaty as regards some parties inter se, even 
        though other parties to the treaty would not be bound by the 
        convention, and their participation would thus be governed by 
        customary law. It must then be asked whether the provisions of 
        the Convention and rules of customary treaty law are 
        compatible. Finally, we will attempt to indicate a possible 
        solution to these problems.''
                           4. interpretation
Chang, I-ting. The interpretation of treaties by judicial tribunals. 
        New York, AMS Press [1968] 196 p. (Studies in history, 
        economics, and public law, no. 389)
      Series statement also appears as: Columbia University studies in 
        the social sciences, 389, reprint of the 1933 ed.
      ``The interpretation of treaties is, perhaps, one of the most 
        confused subjects in international law. The author proposes in 
        this study to treat the subject scientifically by analyzing the 
        decisions of international tribunals and also a few instructive 
        cases decided by national courts on interpretation of treaties, 
        to see, in each case, what issues were actually involved, how 
        they were decided, and what methods of approach were used by 
        the tribunal in handling the case. The author hopes that by 
        this method he may be able to draw from judicial practices 
        accurate conclusions on the interpretation of treaties. Before 
        examining the cases, it is useful, as a preliminary, to study 
        the nature of legal interpretation.'' A bibliography of 
        articles, books, and documents relating to the judicial 
        interpretation of treaties is provided.
Friesen, Jeffrey L. The distribution of treaty-implementing powers in 
        constitutional federations: thoughts on the American and 
        Canadian models. Columbia law review, v. 94, May 1994: 1415-
        1450.
      Comment ``examines the United States treaty-implementation 
        framework and criticisms of it * * * presents the Canadian 
        scheme and its critics * * * suggests how the comparison of the 
        American and Canadian models may guide those who seek to effect 
        new or changing federations.''
Germer, Peter. Interpretation of plurilingual treaties: a study of art. 
        33 of the Vienna Convention on the Law of Treaties. Harvard 
        international law journal, v. 11, 1970: 400-427.
      Germer discusses the drafting, meaning, and operation of Article 
        33 of the Vienna Convention. ``The Vienna Convention does not 
        set forth a rigid formula for the interpretation of 
        plurilingual treaties, but adheres to the idea that whether the 
        obscurity is found in all texts or arises from the plurilingual 
        form of the treaty, the first rule for the interpreter is to 
        look for the meaning intended by the parties to be attached to 
        the term by applying the standard rules for the interpretation 
        of treaties.''
Halberstam, Malvina. A treaty is a treaty is a treaty. Virginia journal 
        of international law, v. 33, fall 1992: 51-68.
      ``While questions concerning the ABM Treaty and the INF Treaty no 
        longer have the pressing immediacy they had at the time they 
        arose, the question whether a treaty can have different 
        meanings domestically and internationally has continuing 
        importance far beyond the proper interpretation of the treaties 
        * * *. This article takes the position that a treaty cannot 
        have different meanings domestically and internationally.''
Jacobs, Francis G. Varieties of approach to treaty interpretation with 
        special reference to the draft convention on the law of 
        treaties before the Vienna Diplomatic Conference. International 
        and comparative law quarterly, v. 18, 1969: 318-346.
      ``There has been a continuing controversy over the principles of 
        treaty interpretation culminating in considerable criticism of 
        the articles on interpretation formulated by the International 
        Law Commission in its Draft Convention.'' ``The object of this 
        paper is to analyse and assess the approach of the 
        International Law Commission in the light of this controversy * 
        * *. A detailed comparison with rival approaches is necessary 
        to appreciate the precise implications of the articles in the 
        Convention. But there is also room for argument about the 
        proper functions of roles of interpretation in international 
        law. The paper ends, therefore, with an attempt to clarify the 
        relevant issues of policy.''
Lipstein, Kurt. Some practical comparative law: the interpretation of 
        multi-lingual treaties with special regard to the EEC treaties. 
        Tulane law review, v. 48, June 1974: 907-915.
      The author examines a ``problem that requires both legal and 
        linguistic techniques derived from foreign law. This is the 
        problem of interpreting bilingual or multi-lingual treaties.''
McDougal, Myres S. The International Law Commission's Draft Articles 
        upon Interpretation: textuality redivivus. American journal of 
        international law, v. 61, Oct. 1967: 992-1000.
      ``The great defeat, and tragedy, in the International Law 
        Commission's final recommendations about the interpretation of 
        treaties is in their insistent emphasis upon an impossible, 
        conformity-imposing textuality. This unhappy emphasis makes an 
        appearance in, and dominated, the goal for interpretation which 
        the Commission implicitly postulates but never critically 
        examines; the deprecatory appraisal which the commission offers 
        of the potentialities that inhere in the rational employment of 
        principles of interpretation; and the content and ordering of 
        the particular principles which the Commission puts forward for 
        canonization as `obligatory' rules of law.'' ``In explicit 
        rejection of a quest for the `intentions of the parties as 
        subjective element distinct from the text,' the Commission 
        adopts a basic approach which demands merely the ascription of 
        a meaning to a text.''
Munday, R.J.C. The uniform interpretation of international conventions. 
        International and comparative law quarterly, v. 27, Apr. 1978: 
        450-459.
      ``The House of Lords denial in Buchanan [James Buchanan & Co. Ltd 
        v. Babeo Forwarding & Shipping (U.K.) Ltd. that there exists 
        any initial presumption in favour of adopting a liberal 
        interpretation of international conventions is calculated to 
        assist in restricting the scope for national variations * * *. 
        The more closely courts adhere to the ordinary and natural 
        meaning of the words of the agreed text, the less opportunity 
        there will be for wide divergences in their construction at 
        home and abroad * * *. In the absence of any supreme 
        international jurisdiction capable of resolving differences 
        between national courts, the most effective approach for all 
        states concerned is to pay serious heed to one another's case 
        law.''
Peace Palace (Hague, Netherlands). Library. Interpretation des traites 
        a la lumiere de la Convention de Vienne de 1969 sur le droit 
        des traites: bibliographie--Interpretation of treaties in the 
        light of the 1969 Vienna Convention on the law of treaties: 
        bibliography. Preparee par la Bibliotheque du Palais de la 
        paix. [La Haye] Centre d'etude et de recherche de l'Academie de 
        droit international de La Haye, 1970. 26 leaves.
      Contents.--The law of treaties in general.--The work of the 
        International Law Commission with regard to the law of 
        treaties.--The Vienna Conferences on the Law of treaties.--
        Interpretation of international law.--Interpretation of 
        international treaties.--Different methods of interpretation.--
        Supplementary means of interpretation.--Interpretation of 
        treaties in two or more languages.--Interpretation of treaties 
        by international courts.--Interpretation of treaties by 
        international arbitration.--Interpretation of the European 
        treaties.--Interpretation of treaties by international 
        organizations.--Interpretation of treaties by national courts 
        of justice.--Interpretation of treaties in the Vienna 
        Convention of 1969 on the Law of Treaties.
Pickert, Perry L. Draft articles for the expansion of authoritative 
        interpretation of United States treaties. Brooklyn journal of 
        international law, v. 2, spring 1976: 205-227.
      ``This paper discusses the problems caused by the abuse of 
        unilateral interpretation of international law and of treaties 
        and suggests draft articles for inclusion in bilateral and 
        multilateral treaties and in the constitutions of international 
        organizations. The articles provide for compulsory settlement 
        by the International Court of disputes arising from the 
        interpretation or application of such treaties or 
        constitutions.''
Ris, Martin. Treaty interpretation and ICJ recourse to travaux 
        preparatoires: towards a proposed amendment of articles 31 and 
        32 of the Vienna Convention on the Law of Treaties. Boston 
        College international and comparative law review, v. 14, winter 
        1991: 111-136.
      ``Comment examines recourse to travaux preparatoires documents 
        which proceed the final text of a treaty by the ICJ 
        International Court Justice in the interpretation of treaties. 
        Part I introduces the standard doctrines of treaty 
        interpretation and their definition and proposed usage of 
        travaux preparatoires. Part II then examines recourse to 
        travaux preparatoires in representative cases and advisory 
        opinions of the ICJ * * *. This Comment proposed an amendment 
        to articles 31 and 32 of the Vienna Convention that could 
        facilitate reliable ICJ recourse to travaux preparatoires.''
Rosenne, Shabtai. Interpretation of treaties in the Restatement and the 
        ILC's draft articles: a comparison. Columbia journal of 
        transnational law, v. 5, no. 2, 1966: 205-330.
      ``In this article an attempt will be made briefly and in somewhat 
        general terms to compare those parts of the [American Law 
        Institute's] Restatement [of the Foreign Relations Law of the 
        United States] which deal with the interpretation of treaties 
        on the international level, i.e., sections 146, 147, 148, and 
        153 * * * with the corresponding articles of the International 
        Law commission's draft, i.e., articles 27, 28 and 29 (matching 
        sections 146, 147, and 148) and 59 (matching section 153).'' In 
        the notes, Roseanne presents a legislative history of articles 
        27, 28, 29 and 59 of the International Law Commission's draft.
Schwarzenberger, George. Myths and realities of treaty 
        interpretations--Articles 27-29 of the Vienna Draft Convention 
        on the Law of Treaties. Current legal problems, v. 22, 1969: 
        205-227.
Schreuer, C.H. The interpretation of treaties by domestic courts. 
        British year book of international law, v. 42, 1971: 255-301.
Sharma, Surya P. The ILC draft and treaty interpretation with special 
        reference to preparatory works. Indian journal of international 
        law, v. 8, 1968: 367-398.
      ``The above analysis seeks to demonstrate the inadequacy of the 
        textualist approach. Articles 27 and 28 of the Draft Articles, 
        now adopted by the Committee of the Whole of the Vienna 
        Conference, do not represent an established law of 
        interpretation. For clarity in thought and rationality in 
        dispute-solving, all the available sources of evidence, without 
        any arbitrary weightage and hierarchical distinction, must be 
        open for the purposes of interpretation. Relegating the 
        circumstances attending the conclusion of the treaty, including 
        recourse to preparatory work, to a secondary position will make 
        the actual dispute-solving more difficult, rather than easy, 
        and to say the least it is not an established practice.''
Stewart, George A. Interpreting the child's right to identify in the 
        U.N. Convention on the Rights of the Child. Family law 
        quarterly, v. 26, fall 1992: 221-233.
      Discusses Article 8, the right to identity, under which a child 
        has the right to preserve his or her nationality, name and 
        family relations as recognized by law without unlawful 
        interference.
Sutter, Bryan L. The nonproliferation treaty and the ``New World 
        Order.'' Vanderbilt journal of transnational law, v. 26, Apr. 
        1993: 181-212.
      ``The Treaty on the Non-Proliferation of Nuclear Weapons (NPT or 
        Treaty) faces either extinction or extension in 1995, when the 
        NPT signatories will meet to decide its fate * * *. Many state 
        have expressed reservations about extending the Treaty. This 
        Note considers the implications of those reservations as well 
        as arguments favoring extension and examines the Treaty's 
        strengths and weaknesses. The author concludes that the Treaty 
        should remain in force.''
Tammelo, Ilmar. Treaty interpretation and practical reason; towards a 
        general theory of legal interpretation. Sydney, Melbourne, Law 
        Book Co., 1967. 110 p. (Studies in legal method series, no. 1)
      Partial contents.--Leading ideas and main problems of treaty 
        interpretation.--Views of international courts on treaty 
        interpretation.--Work of the Institute of International Law on 
        treaty interpretation.--Work of the International Law 
        Commission on treaty interpretation.--Rhetoric as a foundation 
        of treaty interpretation.--Treaty interpretation and practical 
        reason.--Annex A: Note on the maxim interpretation cessat in 
        claris.--Annex B: Remarks on inter, prater, and contra legem 
        interpretation.--Annex C: Remarks on the concept of meaning.--
        Annex D: Remarks on the concept of reason.--Annex E: The 
        Vattelian Armoury and the logical status of its cannons.--List 
        of international cases relevant to treaty interpretation.
Treaty interpretation: the proper role of an impartial tribunal. In 
        American Society of International Law. Proceedings * * * 63d 
        annual meeting held at Washington, D.C., v. 63, 1969: 107-140.
      Leo Gross surveys various perspectives on the role of an 
        international tribunal in treaty interpretation. He reviews 
        draft articles 27 and 28 of the International Law Commission, 
        which were adopted by the Committee of the Whole of the U.N. 
        Conference on the Law of Treaties. Gross suggests ``the 
        Commission's deliberate emphasis on the text as the starting 
        point of interpretation is not directed against the contextual 
        interpretation, which in fact is specifically included in 
        Article 27 in some illustrative detail.''
      Gidon Gottlieb considers ``what the proper role of an 
        international tribunal is when it interprets treaties on the 
        basis of the Vienna Articles.'' He reviews various viewpoints 
        on the roles of texts and shared expectations in the 
        interpretations of agreements. Gottlieb writes: ``States now 
        look to the interpretation of the texts they adopt rather than 
        to deference to their shared subjectivities of expectations. 
        This does not in any way mean that context, objects and 
        purposes, preparatory work and other relevant materials are out 
        of place in the interpretation of texts. What states want is 
        that their texts, their agreements be interpreted, not their 
        shared subjectivities * * *. Under international law, texts 
        were always at least the starting point of interpretation. 
        Judicious resort to the travaux preparatoires and sensitivity 
        to context must never permit the interpreter to lose sight of 
        this textual starting point.''
      Following the papers are summaries of comments and related 
        discussion by Myres McDougal, Michael Barkun, Anthony D'Amato, 
        Zaim Imam, Oscal Schachter, Burns Weston, Louis Henkin, Thomas 
        Franck, W. Michael Reisman, Stanley Metzger, Kenneth Carlston, 
        John Wolff and George Wells.
Wippman, David. Treaty-based intervention: who can say no? University 
        of Chicago law review, v. 62, spring 1995: 607-687.
      ``Can a state by treaty lawfully authorize forcible external 
        intervention in its internal affairs? * * *. Given the variety 
        of treaties--extant or proposed--that would permit forcible 
        intervention in states' internal affairs * * * it is time for a 
        fresh look at the arguments for and against their validity 
        under international law.''
Wirth, David A. Multilingual treaty interpretation and the case of SALT 
        II. Yale studies in world public order, v. 6, spring 1980: 429-
        470.
      ``Evaluates proposed solutions to the difficulties of 
        multilingual treaty interpretation as applied to a concrete 
        problem, the Common Understanding to Paragraph 8 of Article IV 
        of SALT II. First, the precise meaning of the English and 
        Russian texts is examined * * * Then, * * * various doctrines 
        prescribing resolution discrepancies * * * are applied to, and 
        evaluated in the context of this provision.''
Yambrusic, Edward Slavko. Treaty interpretation: theory and reality. 
        Lanham, Md., University Press of America,  1987. 298 
        p.
Yu, Tsune-Chi. The interpretation of treaties. New York, AMS Press 
        [1968] 288 p.
        5. modification, suspension, and termination of treaties
a. Overview
Beilenson, Laurence W. The treaty trap; a history of the performance of 
        political treaties by the United States and European nations. 
        By Laurence W. Beilenson, assisted by Bernard M. Dain. 
        Washington, Public Affairs Press [1969] 344 p.
      Beilenson examines political treaties negotiated by European 
        nations and the United States from 1661-1965, analyzing why 
        certain treaties were broken or honored, and whether the 
        objectives of specific treaties were met. He considers whether 
        there are any consistent patterns in the types of treaties 
        which were abrogated. Beilenson also evaluates the wisdom of 
        relying on treaties and suggests when to rely on existing 
        treaties and when to make new treaties. He provides an 
        extensive bibliography and a chronological index of the 
        treaties cited.
Bilder, Richard B. Managing the risks of international agreement. 
        Madison, University of Wisconsin Press [1981] 302 p.
      ``This book discusses a variety of techniques by which nations 
        can manage the risks of their international agreements and 
        other cooperative arrangements * * *. Chapter 1 is a general 
        discussion of the nature and importance of international 
        agreements, the problems of risk, the options open to nations 
        in attempting to deal with these problems, and some caveats to 
        this study. Chapter 2 is a survey of very general risk-
        management techniques, designed to give a nation broad 
        protection against the risk that it may later decide, for any 
        reason, that it no longer wishes to participate in the 
        agreement, and to give it flexibility to limit or escape from 
        its obligations if it subsequently changes its mind. Chapter 3 
        is a survey of techniques designed specifically to protect a 
        nation against the risk that the intrinsic value of the 
        agreement to it may decline. Chapter 4 is a survey of 
        techniques designed specifically to protect a nation against 
        the risk that its potential treaty partner or partners may not 
        perform the obligations promised, or may do so inadequately. 
        Chapter 5 discusses some general limitations on the use of the 
        specific risk-management techniques dealt with in the study; 
        the relevance of alternative risk-management approaches, 
        particularly attitudes of trust; and some things that might be 
        done to make risk management more effective.''
Briggs, Herbert W. Procedures for establishing the invalidity of 
        termination of treaties under the International Law 
        Commission's 1966 Draft Articles on the Law of Treaties. 
        American journal of international law, v. 61, Oct. 1967: 976-
        989.
      The author ``served as a member of the International Law 
        Commission from 1962 to 1966 and was chairman of the 
        Commission's Drafting Committee during the session in which the 
        Draft Articles were finally adopted.''
      In introductory comments, Briggs writes: ``Without 
        underestimating the many positive contributions which the 
        International Law Commission's Draft Articles make to the 
        codification and progressive development of the law of 
        treaties, one should nevertheless note the heavy concentration 
        of articles on nullity, invalidity, denunciation, withdrawal, 
        suspension, or termination of treaty obligations. It is in 
        these articles, which do less to reinforce the obligation to 
        observe treaties than to provide lawful grounds for invoking 
        their invalidity or denunciation, that some of the boldest 
        innovations are proposed with regard to matters where there is 
        little state practice or where the rules proposed have not 
        hitherto been clearly established. The necessity for 
        establishing procedural safeguards was thus foreseen.''
------. Unilateral denunciation of treaties: the Vienna Convention and 
        the International Court of Justice. American journal of 
        international law, v. 68, 1974: 51-68.
      ``It is noteworthy that the articles of the Vienna Convention on 
        which the Court has made explicit observations have all 
        concerned claims to terminate treaties unilaterally on grounds 
        such as breach, coercion, or changed conditions, and it is to 
        these aspects of the cases to be examined that our attention 
        will be largely confined * * *.
      ``One may conclude that, with the exception of its Namibia 
        aberration, the Court's consideration of the Vienna Convention 
        on the Law of Treaties has been helpful in furthering the 
        consolidation of the law against unilateral denunciation of 
        international agreements without accountability therefor.''
Chinkin, Christine M. Crisis and the performance of international 
        agreements: the outbreak of war in perspective. Yale journal of 
        world public order, v. 7, spring 1981: 177-208.
      The author views the impact of international crisis on 
        international agreements, focusing ``on the criteria parties 
        should use to make and evaluate claims relating to 
        international agreements in times of crisis and the criteria 
        the world community should use to evaluate those claims.''
------. Nonperformance of international agreements. Texas international 
        law journal, v. 17, summer 1982: 387-432.
      The article concentrates ``on the problem of breach, or 
        nonperformance, of an international agreement and * * * 
        consider[s] when the behavior relating to the performance of an 
        agreement deviates so far from the expectations of both the 
        parties and the world community that the agreement is in a 
        state of breach or nonperformance.''
David, Arie E. The strategy of treaty termination: lawful breaches and 
        retaliations. New Haven, Yale University Press, 1975. 324 p.
      ``The problem of treaty termination in a decentralized arena 
        necessarily involves examination of a large number of 
        interrelated subjects. It concerns the empirical and conceptual 
        analysis of both legitimacy and bargaining power, and the 
        simultaneous feedback of international rules, claims, 
        proposals, warnings, threats, and promises, including their 
        gradual fulfillment. The following discussions, therefore, 
        revolve around fundamental notions such as the conclusion of 
        new agreements in a context of mutual mistrust, treaty 
        breaches, deterrence, reprisal and retaliations, and reciprocal 
        efforts to avoid--or at least to restrain--the damage from such 
        activities to the economies of the parties and interested third 
        parties. Appraisal and recommendation for conflict behavior 
        under such conditions, of course, must also include inquiry of 
        the longer range goals and policies of the emerging global 
        community * * *. In terms of the cases chosen, and the range of 
        problems and factors discussed, the study is intended to be 
        merely selective * * *. The first part deals with the history 
        of coping with problems of treaty termination * * *. The 
        purpose of part 2 is an increased understanding of the peculiar 
        nature of the termination conflict and how it may be resolved 
        by negotiation and new agreement * * *. [In part 3] the 
        discussion centers on the idea that in international relations 
        governments communicate by deeds, not only by words, and that 
        therefore the timing of procedural submission and of 
        substantive argumentation, as well as their content and style, 
        are of the utmost policy and tactical importance.''
Koeck, Heribert Franz. The ``changed circumstances'' clause after the 
        United Nations Conference on the Law of Treaties. Georgia 
        journal of international & comparative law, v. 4, 1974: 93-115.
      Koeck was a member of the Austrian Delegation to the second 
        session of the U.N. Conference on the Law of Treaties in 1969.
      In introductory remarks he writes: ``The obligation of a state to 
        perform under a treaty, after a substantial change of 
        circumstance has occurred, is a question which has provided 
        material for generations of legal scholars * * *.
      ``The present brief study aims at examining the question of how 
        far the `Changed Circumstances' clause of the Vienna Convention 
        of the Law of Treaties is in line with traditional approaches 
        to the problem.''
      In concluding, Koeck writes: ``If the article [62] as it stands 
        leave[s] still some doubts about the workability of the 
        principle of `changed circumstances' in contemporary 
        international law, this is due, not so much to any theoretical 
        defect for which the drafters could be held responsible, but 
        only to the inability or unwillingness of the conference to 
        provide the procedural safeguards that alone would have made 
        the article a useful instrument in the field of treaty law * * 
        *. The principle of `changed circumstances' must today, 
        therefore, be regarded as a device for political pressure 
        rather than as a legal means of peaceful change.''
Lissitzyn, Oliver James. Treaties and changed circumstances (rebus sis 
        stantibus). American journal of international law, v. 61, 1967: 
        895-992.
      ``In some degree, the I.L.C. [International Law Commission] Draft 
        [Articles on the Law of Treaties] reflects both approaches to 
        the problem of the role of changes of circumstances in treaty 
        relationships--the expectations-of-parties approach and the 
        intolerable-burden approach. The relevant articles of the 
        Draft, however, fail to clarify or fully mesh the policies 
        underlying the two approaches. The resulting formulations are 
        open to differing interpretations and applications.''
      Another version of this article, Stability and Change: Unilateral 
        Denunciation or Suspension of Treaties by Reason of Changed 
        Circumstances, appears in ``Some Contemporary Problems of 
        Treaty Law Suggested by the Draft Articles on the Law of 
        Treaties of the International Law Commission,'' in Proceedings 
        of the American Society of International Law, v. 61, 1967, on 
        pp. 186-193, with panel discussion of the paper on pp. 204-209.
Nahlik, S.E. The grounds of invalidity and termination of treaties. 
        American journal of international law, v.65, Oct. 1971: 736-
        756.
      ``Among the important topics which before, at and after the 
        Vienna Convention gave rise to much discussion and numerous 
        controversies in the `Invalidity, Termination and Suspension of 
        the Operation of Treaties' under Part V of the convention * * 
        *. Although only one among seven parts of the draft convention 
        submitted to the General Assembly by the International Law 
        Commission, the number of articles it contained was exactly 40 
        percent of the total amount of all articles, thirty out of 
        seventy-five. This fact alone caused some anxiety: so many 
        articles to restrict the binding force of treaties by making it 
        possible either to impeach their validity, or to terminate 
        them, or, at the very least, to suspend their operation? 
        Besides, are there not in those articles provision proclaimed 
        as pertaining to the `progressive development of international 
        law,' which bring into international law some essential new 
        elements? * * * In order to provide a general answer to these 
        questions, it seems necessary to concentrate upon two issues; 
        1) Are there truly so many, even too many, grounds of 
        invalidity, termination, or suspension of the operations of 
        treaties? 2) Is there much, among those grounds, that should be 
        regarded as essentially new?''
Reismann, W. M. Procedures for controlling unilateral treaty 
        termination. American journal of international law, v. 63, 
        1969: 544-547.
      ``The absence of institutionalized procedures for resolving 
        disputes about continuing treaty regimes has produced a number 
        of practical problems for international lawyers * * *.
      ``The International Law Commission's draft Convention on the Law 
        of Treaties, which was reviewed by the Vienna Conference, has 
        encountered the problem of dispute-resolution in exacerbated 
        form. Due to the strong diplomatic pressure from certain 
        quarters, the prescriptions for invalidating, terminating and 
        suspending the operation of treaties, have been spelled out in 
        greater detail than usual. As a consequence, the need for 
        establishing procedures for dispute-resolution has become ever 
        more urgent. Articles 62 and 63 of the draft introduce only the 
        most minimal procedures; notification and, in case of 
        disagreement, reference to the modalities spelled out in 
        Article 22 of the Charter. An alternative approach, Article 62 
        bis, establishes a series of compulsory sequential procedures, 
        most of them institutionalized, which alone will authorize 
        invalidation, termination or suspension of operation.
      ``Past state practice suggests that compulsory procedures will 
        either be rejected by the Conference or, if accepted, be 
        subjected to unilateral reservations at the later stage of 
        ratification. As a result, treaty-making states will be 
        required to devise their own procedure for dealing with the 
        increased problem of invalidity, termination and suspension in 
        a rapidly changing international context.''
Rosenne, Shabtai. Breach of treaty. Cambridge [Cambridgeshire] Grotius, 
        1985,  1984. 142 p.
Schwelb, Egon. Termination or suspension of the operation of a treaty 
        as a consequence of its break. Indian journal of international 
        law, v. 7, 1967: 309-334.
      ``The present paper is devoted to the analysis of that provision 
        of the [International Law Commission's] draft articles (draft 
        article 57) which deals with the consequences of a breach of a 
        treaty.''
      Egon Schwelb provides a legislative history of Article 57 and 
        compares it with the American Law Institute's provisions in its 
        Restatement of the Foreign Relations Law of the United States, 
        1962, as revised in 1964 and 1965. Schwelb discusses the 
        concept of a ``material breach,'' problems arising from 
        interdependent and multilateral treaties, the separability of 
        treaties and the rights of parties affected by the breach to 
        invoke the breach as a ground for terminating the treaty or 
        suspending its operation.
Some contemporary problems in treaty law suggested by the Draft 
        Articles of the Law of Treaties of the International Law 
        Commission. American Society of International Law. Proceedings 
        * * * 61st annual meeting held at Washington, D.C., v. 61, 
        1967: 186-209.
      Oliver Lissitzyn examines whether a state has ``the right to 
        terminate or suspend its obligations under a treaty on the 
        ground that there has been a change in conditions or 
        circumstances since the treaty was concluded if the treaty 
        itself does not expressly provide for such a right.'' He 
        surveys and analyzes the relevant International Law 
        Commission's draft articles. [Another version of Lissitzyn's 
        paper, Treaties and Changed Circumstances (Rebus sis Stantibus) 
        appears in the American journal of international law, v. 61, 
        1967, on pp. 895-992. It is cited above.]
      Richard Bilder explores how foreign office (such as State 
        Department) officials view treaties and issues concerning 
        breach of treaties. He then considers the implications of their 
        approaches for international law.
      Following the papers are summaries of comments and discussion by 
        Myres McDougal, Egon Schwelb, Anthony D'Amato, Denys Myers, 
        Wasswa Balimunsi, Leon Lipson, Vishwanath More, Hans Aufricht, 
        Quincy Wright, and John Fried.
Tobin, Harold James. The termination of multipartite treaties. New 
        York, AMS Press, 1967. 321 p. (Studies in history, economics, 
        and public law, no. 388) Reprint of the 1933 ed., which was 
        issued also as a thesis, Columbia University.
      The author examines the effect of war on multipartite treaties. 
        He also considers termination of treaties by unilateral 
        denunciation and termination by agreement of the parties, 
        through the conclusion of a new and superseding treaty. Tobin 
        discusses related questions as well, including the separability 
        of treaty provisions. ``This study is based primarily on treaty 
        texts, protocols of conferences, diplomatic correspondence and 
        court decisions concerning treaties. This material has been 
        supplemented by legal and historical interpretations of the 
        events bearing directly on these treaties.'' A bibliography of 
        works contributing to the study is included.
Wright, Quincy. The termination and suspension of treaties. American 
        journal of international law, v. 61, 1967: 1000-1005.
      Quincy Wright examines provisions of the Draft Convention of 
        Treaty Law by the United Nations International Law Commission 
        which addresses treaty termination resulting from violation of 
        the agreement by one party. He also considers how the Draft 
        Convention would apply to the Vietnam Ceasefire Agreement.
      ``The issue whether another party to a treaty has violated a 
        provision, whether the violation constitutes a `material 
        breach,' and whether the breached provision is separable, are 
        generally controversial, and the freedom of one party to decide 
        unilaterally on these questions is likely to lead to abuses. On 
        the other hand, it would seem unjust if one party were obliged 
        to continue observance of a treaty, when convinced that the 
        other party is grossly violating it, for at least three months, 
        and perhaps longer, while negotiations proceed by the means 
        suggested in Article 33 of this Charter * * *. Unilateral 
        suspension of the operation of a treaty, in whole or in part, 
        might be made permissible on notice charging violation, but 
        with the requirement that the treaty obligation cannot be 
        terminated or withdrawn from until agreement has been reached 
        or the International Court of Justice has supported the claim 
        to terminate or to suspend for a longer period.'' Wright 
        recommends that this solution be considered by the Vienna 
        Convention.
b. Questions of treaty validity
Malawer, Stuart S. Imposed treaties and international law. California 
        Western international law journal, v. 7, winter 1977: 1-178.
      ``This article discusses and analyzes the rule of international 
        law which declares invalid any treaty which is imposed by the 
        threat or use of aggressive military force against a 
        contracting state. The twentieth century development of the 
        rule is examined by surveying the doctrine, state practice, 
        international legislation and jurisprudence of the inter-war 
        and post-World War II periods.''
Meron, Theodor. Applicability of multilateral conventions to occupied 
        territories. American journal of international law, v. 72, July 
        1978: 542-557.
      ``The object of this article is to consider whether an occupying 
        power has the right or the duty under international law to 
        apply multilateral treaties to which it is a party in the 
        territories which it occupies. Focusing on the case of the 
        territory west of the Jordan River, which is commonly known as 
        the West Bank * * * this study will deal the relevant ILO 
        conventions, the Chicago Convention, the law of belligerent 
        occupation, and the interaction between these bodies of law.''
Paul, Vladimir. The legal consequences of conflict between a treaty and 
        an imperative norm of general international law (jus cogens). 
        Osterreichische Zeitschrift fur offentliches Recht, v. 21, Apr. 
        1971: 19-49.
      The author, who is from Prague, examines the history of the 
        concept of jus cogens, in light of court opinions and State and 
        international practices. He reviews writings on jus cogens and 
        analyzes the International Law Commission's (ILC) conception of 
        jus cogens in Article 61 of the Draft Articles on the Law of 
        Treaties, Paul considers the relations of jus cogens to 
        international morality and public policy, and he discusses the 
        separability of treaty provisions. He also reviews ILC draft 
        procedures for dealing with international disputes regarding 
        the invalidity of international treaties which conflict with a 
        peremptory norm of international law.
Rozakis, Christos L. The concept of jus cogens in the law of treaties. 
        Amsterdam; New York, North-Holland Pub. Co., 1976. 206 p.
      ``The present study is aimed at exposing in a systematic way the 
        hiatus existing between the substantive provisions of the 
        Convention which lay down the function of the jus cogens 
        concept and the provisions implementing that function. In 
        effect, the substantive provisions, as such, introduce in the 
        international legal system the concept of jus cogens duly 
        empowered with the sanction of invalidity to be applied to all 
        treaties which conflict with the content of norms having that 
        imperative character; but the articles which are assigned to 
        deal with the materialization of that sanction and which 
        constitute the only legal tool through which the parties to the 
        Convention may contest the legality of a treaty, are quite 
        often unable to fulfill the intended function of the 
        substantive articles.''
      Contents.--The function of the jus cogens norms.--The 
        identification of the jus cogens norms.--The modification of 
        the jus cogens norms.--The sanctioning power of the jus cogens 
        norms.--The settlement of disputes.
Schwelb, Egon. Some aspects of international jus cogens as formulated 
        by the International Law Commission. American journal of 
        international law, v. 61, Oct. 1967: 946-975.
      ``The [International Law] Commission's proposals relating to 
        international jus cogens [in the Commission's draft articles on 
        the law of treaties] have engendered a considerable amount of 
        debate among governments and among publicists. In the present 
        article, an attempt will be made to deal from a practical point 
        of view with some of the many problems which the * * * draft 
        articles raise. The article will not reproduce and analyze the 
        views of writers, but lay emphasis on such state practices as 
        there exist and upon currently advancing views of governments. 
        References to the views of publicists will be made only where 
        this is necessary to illustrate the scope and the 
        potentialities, but also the vagueness, the elasticity, and the 
        dangers of the concept of international jus cogens as 
        formulated in the draft.''
Scott, Gary L. Carr, Craig L. The International Court of Justice and 
        the treaty/custom dichotomy. Texas international law journal, 
        v. 16, summer 1981: 347-359.
      ``This Article addresses the treaty/custom problem in three 
        distinct ways. First, it briefly reviews some of the recent 
        literature on the subject, with revelatory rather than exegetic 
        intent. Second, it traces the impact of the treaty/custom 
        debate on the opinions of the International Court of Justice; 
        it is there that the crosscurrents of international law 
        experience their ebb and flow. Third, it exposes some 
        preconceptions about law which have led students of 
        international law to place such importance on the treaty/custom 
        issue, and it offers a prolegomenon to an alternate theoretical 
        framework for analyzing the functions of the International 
        Court of Justice which avoids appeal to the treaty/custom 
        dichotomy.''
Sztucki, Jerzy. Jus cogens and the Vienna Convention on the Law of 
        Treaties: a critical appraisal. Wien, New York, Springer-
        Verlag, 1974. 204 p. (Osterreichische Zeitschrift fur 
        offentliches Recht. Supplementum 3)
      ``The primary purpose of this study is to analyze critically the 
        conventional concept of jus cogens as it developed and as it 
        stands--without avoiding theoretical considerations but also 
        without attempting to present any new theory of the legality of 
        treaties in the present day international law * * *. In the 
        last part an attempt is made at presenting in summarized form 
        the question of legality of treaties as it appears to stand 
        now.''
      The author includes a bibliography listing recent works on the 
        law of treaties, writings devoted to the Vienna Convention on 
        the Law of Treaties, and works addressing the question of jus 
        cogens in international law.
Zotiades, George B. Intervention by treaty right: its legality in 
        present day international law. [Nicosia, Cyprus, Geka Press] 
        1965. 41 p. (Jus gentium, series of publications on 
        international law; v. 6)
      ``What this paper deals with is the legality of unilateral--not 
        collective--intervention expressis verbis stipulated in 
        bilateral treaties. The validity of this group of treaties is 
        questioned.''
      Partial contents.--Statements of the problem.--The definition of 
        intervention.--Treaties of guarantee stipulating a right of 
        intervention.--The principle of non-intervention in 
        international law.--Critical analysis of the arguments advanced 
        in support of the legality of intervention by treaty right.--
        Intervention by treaty right as a violation of present day 
        international law.
                         6. dispute settlement
Adede, A.O. A survey of treaty provisions on the rule of exhaustion of 
        local remedies. Harvard international law journal, v. 18, 
        winter 1977: 1-19.
      ``The treaty-law analysis undertaken here will address two basic 
        questions. The first question asks which `local remedies' are 
        to be exhausted as a pre-condition to the initiation of 
        international proceedings. The primary issue here is whether 
        `local remedies' to be exhausted include nonjudicial forms of 
        redress. The second question involves the scope of the rule. 
        The main problem is whether the local remedies rule must be 
        applied in every case or whether certain conditions exist under 
        which it need not be applied. The answer to the second question 
        will enable us to decide whether the rule of exhaustion of 
        local remedies is a rule of substances or rule of procedure. 
        The answers to both questions will provide the basis for 
        conclusions relating to the proper function and rationale of 
        the rule.''
Coll, Richard J. United States enforcement of arbitral awards against 
        sovereign states: implications of the ICSID convention. Harvard 
        international law journal, v. 17, spring 1976: 401-415.
      ``This Comment examines the relevant provisions of the ICSID 
        [International Centre for Settlement of Disputes] Convention to 
        determine its impact upon the traditional bars to enforcement 
        of arbitral awards against states by private parties. To 
        facilitate analysis, the specific question addressed is whether 
        an American investor who has prevailed in ICSID arbitration can 
        secure enforcement of the award in the United States should the 
        foreign state against which the award was rendered refuse to 
        comply with it.''
Cosca, Cecilia E. Zimmerer, Joseph J. Judicial interpretations of 
        foreign arbitral awards under the U.N. convention. Law and 
        policy in international business, v. 8, no. 3, 1976: 737-762.
      Comment reviews U.S. case law, indicating ``a receptiveness to 
        enforcement of international arbitration agreements and awards 
        based on both the Convention and an independent base of public 
        policy.''
Foreign judgments based on foreign arbitral awards: the applicability 
        of res judicata. University of Pennsylvania law review, v. 124, 
        Nov. 1975: 223-249.
      In the context of the Convention on the Recognition and 
        Enforcement of Foreign Arbitral Awards, comment considers 
        whether the doctrine of merger, an element of res judicata, is 
        applicable to arbitral awards and foreign judgments based 
        thereon.
Kennedy, Lionel. Enforcing international commercial arbitration 
        agreements and awards not subject to the New York Convention. 
        Virginia journal of international law, v. 23, fall 1982: 75-
        101.
      Comment discusses ways of enforcing an international arbitration 
        agreement or award that is not covered by the United Nations 
        Convention on the Recognition and Enforcement of Foreign 
        Arbitral Awards (known as the New Convention).
McClendon, J. Stewart. Enforcement of foreign arbitral awards in the 
        United States. Northwestern journal of international law and 
        business, v. 4, spring 1982: 58-74.
      Examines both the New York Convention and the United States 
        Arbitration Act. Describes the requirements and procedures for 
        enforcing foreign arbitral awards in the United States. 
        Considers the substantive and procedural defenses to 
        enforcement of foreign arbitral awards, and reviews the 
        relevant U.S. case law.
Mirabito, A. Jason. The United Nations Convention on the Recognition 
        and Enforcement of Foreign Arbitral Awards: the first four 
        years. Georgia journal of international & comparative law, v. 
        5, summer 1975: 471-501.
      ``The purpose of this paper is to examine the various legal 
        regimes in force that facilitate this enforcement [of foreign 
        arbitral awards] and especially to consider the United Nations 
        Convention on the Recognition and Enforcement of Foreign 
        Arbitral Awards, recently adopted by the United States, and its 
        effects upon the enforcement of foreign arbitral awards.'' 
        Mirabito concludes: ``Although the Convention is not a panacea 
        for all the problems which enforcement of foreign award 
        entails, and although it does not go as far as some desire in 
        creating an international arbitration tribunal, it is at least 
        a practical, realistic system that can operate in today's 
        world.''
Mosler, Hermann. Supra-national judicial decisions and national courts. 
        Hastings international and comparative law review, v. 4, spring 
        1981: 425-472.
      ``Justice Mosler of the International Court of Justice discusses 
        at length the various supra-national courts of universal, 
        regional, and specialized jurisdiction. The Article continues 
        with an analysis of the relationship between national and 
        supra-national courts, forms of supra-national judgments, and 
        the effect of these judgments on the national judiciary of the 
        states party to the action and on non-party states. Finally, 
        the relevance of multilateral treaty systems to the enforcement 
        of international judgments is examined.''
Sohn, Louis B. The role of arbitration in recent international 
        multilateral treaties. Virginia journal of international law, 
        v. 23, winter 1983: 171-189.
      This article ``considers the various dispute resolution 
        procedures traditionally found in multilateral treaties. It 
        then * * * turns to a more specific discussion of the use of 
        arbitration as a settlement technique, including an overview of 
        the current status of efforts aimed at the codification of 
        international arbitral rules. Finally, this Article * * * 
        focus[es] on the dispute resolution provisions of the 1982 Law 
        of the Sea Convention in an attempt to evaluate the role played 
        by arbitration in recent multilateral agreements.
Symposium-enforcement of foreign judgments and arbitral awards. 
        Virginia journal of international law, v. 17, spring 1977: 359-
        493.
      Contents.--Enforceability of settlements of foreign investment 
        disputes, by P. Gilbert.--The challenge to the enforcement of 
        socialist arbitral awards, by F. Orban, III.--Enforcement of 
        foreign judgements and arbitral awards in West Germany, by H. 
        Bertram-Nothnagel.--Enforcement of foreign judgments in the 
        United States, by R. von Mehren.--The Common Market Convention 
        on Jurisdiction and the Enforcement of Judgments: an interim 
        update, by P. Herzog.--The proposed United States-United 
        Kingdom convention on recognition and enforcement of judgments: 
        a prototype for the future? By H. Smit.--Foreign arbitral 
        awards and the 1958 New York convention: experience to date in 
        the U.S. courts, by P. Trooboff and C. Goldstein.
                        7. succession of states
Lavalle, Roberto. Dispute settlement under the Vienna Convention of 
        Succession of States in Respect of Treaties. American journal 
        of international law, v. 73, July 1979: 407-425.
      Provides a critical review of the provisions of part VI of the 
        Convention which, according to the author ``suffers from 
        certain technical shortcomings and raises problems of 
        interpretation.''
Maloney, Matthew G. Succession of States in respect of treaties: the 
        Vienna Convention of 1978. Virginia journal of international 
        law, v. 19, summer 1979: 885-914.
      Explores ``historical and practical background of the law of 
        State succession, describe[s] and analyze[s] the new Vienna 
        Convention and consider[s] the applicability of the Convention 
        to future problems of State succession.''
Rhinelander, John B. Bunn, George. Who's bound by the former Soviet 
        Union's arms control treaties? Arms control today, v. 21, Dec. 
        1991: 3-7.
      ``As the Soviet government transforms or collapses, which of the 
        resulting entities will be bound by the treaties the Soviet 
        Union entered into?''
Rogge, O. John. State succession. New York law forum, v. 16, no. 2, 
        1970: 378-391.
      Examines the problem of the effect on U.S. extradition relations 
        when a state or territory covered by a such a treaty changes 
        its form of government or becomes part of a nation other than 
        that with which we have the formerly applicable treaty.
Stewart, James B. The International Law Commission, 26th session. Draft 
        Articles on the Succession of States in respect of Treaties: 
        the pragmatic development of international law. Harvard 
        international law journal, v. 16, summer 1975: 638-647.
      ``The Articles on the Succession of States in respect of Treaties 
        are designed to resolve disputes over treaty obligations 
        concluded by a predecessor State when a new State makes its 
        appearance. They do not cover situations arising from a change 
        of governments within a State.''
Succession of states in respect of bilateral treaties. [New York] 
        United Nations, 1971. 103 p. (United Nations. [Document] A/
        CN.4/243/Add.1)
      At head of title: United Nations General Assembly.
Succession of states in respect of bilateral treaties; studies prepared 
        by the Secretariat. [New York] United Nations, 1970. 63 p. 
        (United Nations. [Document] A/CN.4/229)
      At head of title: United Nations General Assembly.
      Describes extradition treaties.
Succession of states in respect of treaties; report. [New York] United 
        Nations, 1975. 26 p. (United Nations. [Document] A/10198)
      At head of title: United Nations General Assembly.
      Includes comments and observations of member states on the draft 
        articles on succession of states in respect of treaties.
Third report on succession in respect of treaties. Prepared by Sir 
        Humphrey Waldock. [New York] United Nations, 1970. 70 p.
      At head of title: United Nations General Assembly.
Udokang, Okon. Succession of new states to international treaties. 
        Dobbs Ferry, N.Y., Oceana Publications, 1972. 525 p.
      ``The international law of State succession must not be studied 
        in isolation, but rather in the wider context of international 
        politics.''
      Partial contents.--The concept and theory of State succession.--
        Succession to treaties in new States.--Succession to 
        multilaterial treaties.--Succession to membership in 
        international institutions.--Succession to ``localized'' or 
        ``dispositive'' treaties.--Succession to bilateral treaties and 
        economic concession.
      The author includes an extensive bibliography of books, U.N. 
        publications, articles, and other sources.
Vienna Convention on Succession of States in Respect to Treaties; 
        official documents. American journal of international law, v. 
        72, Oct. 1978: 971-988.
                C. International Agreements and U.S. Law
                               1. general
American Law Institute. Restatement of the law, the foreign relations 
        law of the United States. Rev. and enl. St. Paul, Minn., 
        American Law Institute Publishers, 1987. 2 v. Restatement of 
        the law, third, the foreign relations law of the United States. 
        ``As adopted and promulgated by the American Law Institute at 
        Washington, D.C., May 14, 1986.''
      ``This volume is the American Law Institute's Official Draft of 
        Restatement Third, Restatement of the Foreign Relations Law of 
        the United States.''
Bradley, Curtis A. The treaty power and American federalism. Michigan 
        law review, v. 97, Nov. 1998: 390-461.
      Article ``describes why the relationship between the treaty power 
        and American federalism is particularly significant today, in 
        light of recent changes in the nature of treaty-making, as well 
        as the recent federalism jurisprudence of the Supreme Court.''
The Constitution of the United States of America: analysis and 
        interpretation; annotations of cases decided by the Supreme 
        Court of the United States to June 29, 1992. Prepared by the 
        Congressional Research Service. Washington, U.S. Government 
        Printing Office, 1992. (Document, Senate, 103d Congress, 1st 
        Sess., no. 103-6)
      This edition includes annotations of U.S. Supreme Court decisions 
        interpreting the provisions of the Constitution through June 
        29, 1992. An index with subheadings under terms such as 
        treaties, war, executive agreements, powers, and Congress 
        provides access to specific topics. With 1996, 1998, and 2000 
        supplements. Available on the Web: http://www.access.gpo.gov/
        congress/senate/constitution/
Cowles, Willard Bunce. Treaties and constitutional law: property 
        interferences and due process of law. Westport, Conn., 
        Greenwood Press, 1975. 315 p. Reprint of the 1941 ed. published 
        by American Council on Public Affairs, Washington.
      ``Our first inquiry will be to ascertain whether or not it was 
        the original intention that the due process and just 
        compensation clauses were to be paramount law in respect of the 
        domestic, legal operation of treaties. Part One of the study 
        will deal with this. Thereafter (in Part Two) we shall develop 
        the legal and congressional thought and decisions where the 
        courts or Congress have had before them the question of the 
        supremacy of those clauses in relation to treaty stipulations. 
        If, in some cases, the courts have held a treaty provision to 
        be binding upon them, we shall inquire whether they have 
        regarded the United States as, or have held it to be, duty 
        bound under the Fifth Amendment to assure the property owner of 
        just compensation. Subsequent action of Congress in such cases 
        will be set forth.''
Crandall, Samuel Benjamin. Treaties: their making and enforcement. 2d 
        ed. Washington, J. Byrne and Co., 1916. 663 p.
      Partial contents.--Prior to the Articles of Confederation.--Under 
        the Articles of Confederation.--The Federal Convention.--
        Discussion preceding the adoption of the Constitution.--The 
        advice and consent of the Senate.--Powers of the President.--
        Agreements reached by the executive without the advice and 
        consent of the Senate.--Agreements by the executive in virtue 
        of acts of Congress.--Treaties involving an appropriation.
      A table of cases precedes chapter 1, and a digest of decisions of 
        American courts construing treaties, arranged by countries and 
        treaties, forms the first appendix.
      The 1904 edition of this work was reprinted in 1968 by AMS Press, 
        N.Y., as part of the Columbia University Studies in Social 
        Sciences series; no. 54.
Dalton, Robert E. International agreements in the revised restatement. 
        Virginia journal of international law, v. 25, fall 1984: 152-
        168.
      ``On April 1, 1980, the American Law Institute published 
        Tentative Draft No. 1 of the Restatement of Foreign Relations 
        Law of the United States (Revised) (`Revised Restatement'). 
        This Article addresses the provisions of the draft that deal 
        with international agreements. The reporters have made a 
        significant contribution, although several areas, especially 
        concerning the interplay of executive, congressional, and 
        customary authority, still raise important questions.''
Dearborn, Charles H., III. The domestic legal effect of declarations 
        that treaty provisions are not self-executing. Texas law 
        review, v. 57, Jan. 1979: 233-251.
      ``On February 23, 1978, President Carter transmitted four human 
        rights treaties to the Senate for its advice and consent. The 
        President also recommended a number of `reservations,' 
        `understandings,' and `declarations,' ostensibly designed to 
        conform the treaties to United States law and thereby avoid 
        `constitutional or other legal obstacles to * * * 
        ratification.' The State Department and the President also 
        recommended that a declaration that certain provisions are not 
        self-executing accompany each treaty * * *. This Note argues 
        that the declarations are of dubious validity, probably have no 
        binding effect on United States courts, and should not be used 
        as aids in construing the treaties.''
The Federalist. Edited with introduction and notes by Jacob E. Cooke. 
        Middletown, Conn., Wesleyan University Press [1961] 672 p.
      Professor Arthur Bestor contends that ``by general agreement the 
        most significant of the contemporaneous explanations of how the 
        Constitution was intended to work was the series of papers 
        entitled The Federalist.'' These essays were written by James 
        Madison, Alexander Hamilton, and John Jay in 1788, in response 
        to objections made by New Yorkers to the Constitution which had 
        been proposed on September 17, 1787, at the Philadelphia 
        Convention. The essays defend the Constitution and explain its 
        provisions. An index, with entries including Congress of the 
        United States, executive, foreign affairs, President, Senate, 
        treaty power, and war, provides subject access to the essays.
Foundation for Study of Treaty Law. Treaty law manual. Washington, 
        Foundation for Study of Treaty Law [1954?] 61 p.
      ``A determination of whether the American people should amend 
        their constitution to limit the treaty power of the Federal 
        Government is a question of balancing risks. Opponents of the 
        proposal say that it might, in some now unforseen future 
        circumstances, prevent a President of the United States from 
        entering into a treaty or executive agreement vital to the 
        public interest. They urge that the President must necessarily 
        have broad powers to fully serve the people.
      ``The proponents of the amendment, on the other hand, say that 
        granting broad powers to the executive over the internal 
        domestic affairs of the people may ultimately result in the 
        loss of our liberty. They recall that our forefathers refused 
        to adopt the present constitution until the Bill of Rights had 
        been added to protect individual liberties. The guarantees of 
        individual liberty included in that Bill of Rights may now, the 
        proponents of the amendment urge, be taken from the people by 
        international treaty.''
Haskell, Donald M. The Warsaw system and the U.S. Constitution 
        revisited. Journal of air law and commerce, v. 39, autumn 1973: 
        483-517.
      ``The Warsaw Convention and the Montreal Interim Agreement 
        provide effective limits on recovery for wrongful death in 
        international flights. In this article Mr. Donald M. Haskell 
        argues for the validity of these international agreements under 
        the United States Constitution. His analysis included an 
        examination of the supremacy clause and the treaty-making power 
        of the federal government, the separation of powers and 
        political question doctrines of judicial abstention, and the 
        application of due process and equal protection principles to 
        claims arising from international air tragedies.''
Hendry, James McLeod. Treaties and Federal constitutions. Westport, 
        Conn., Greenwood Press, 1975,  1955. 186 p. Reprint 
        of the ed. published by Public Affairs Press, Washington.
      ``This study has two objectives. The first is to make an 
        exhaustive analysis of constitutional limitations of four 
        Federal states [Canada, Australia, the United States, and 
        Switzerland], compare their effect, and determine their real 
        and supposed validity restricting the participation of these 
        states in international affairs. The second is to ascertain 
        what scope there is for international law to assist the states 
        in better international collaboration by the development, 
        change or institution of international legal rules for 
        international agreements.''
      Contents.--The problem.--Historical and constitutional 
        considerations on the treaty processes of Federal states.--The 
        treaty-making powers of Federal executives.--Governmental 
        participation in the treaty-making powers of Federal 
        executive.--Treaty performance and fundamental laws.--Treaty 
        performance and the legislative powers of the component 
        states.--Constitutional limitations and international law.--
        Constitutional limitations and fundamental laws.
Henkin, Louis. Foreign affairs and the United States Constitution. 
        Oxford, Clarendon Press; New York, Oxford University Press, 
        1996. 582 p.
      The author ``attempts to illuminate the constitutional provisions 
        that deal with foreign relations and the special significance 
        for foreign relations of other constitutional clauses * * *. 
        This volume is an essay in law, not in legal history, and it 
        concentrates on where we are going, rather than on where we 
        were or even how we got here.'' Henkin examines 
        ``insufficiencies in the constitutional blueprint,'' the 
        distribution of Federal political power in foreign affairs, and 
        the constitutional law governing international agreements and 
        cooperation. He reviews use of the treaty power to promote 
        international human rights.''
------. The treaty makers and the law makers: the Niagara Reservation. 
        Columbia law review, v. 56, Dec. 1956: 1151-1182.
      Henkin reviews the background and provisions of the 1950 Treaty 
        with Canada Concerning Uses of the Waters of the Niagara River. 
        He examines the Senate reservation in its resolution of August 
        9, 1950, that ``The United States on its part expressly 
        reserves the right to provide by Act of Congress for 
        redevelopment, for the public use and benefit, of the United 
        States share of the Niagara River made available by the 
        provisions of the Treaty, and no project for redevelopment of 
        the United States share of such waters shall be undertaken 
        until it is specifically authorized by Act of Congress.'' 
        Henkin explores the reasons motivating that reservation, as 
        revealed in the Senate Foreign Relations Committee Report (S. 
        Exec. Rept. 11, 86th Cong., 2d Sess., 1950). He also considers 
        developments subsequent to the treaty, from 1950 to 1956.
      Henkin critiques assumptions underlying the New York Power 
        Authority's claim that the reservation does not fall within the 
        treaty power of the Constitution. He considers the contractual 
        natures of the reservation and examines legislative aspects of 
        the treaty in relation to the legislative power of Congress.
      Henkin contends that Article VI of the Constitution ``establishes 
        that the power includes an important power to legislate 
        domestically within a limited area'' including ``The power to 
        enact provisions in or relating to a treaty like the provision 
        in the Niagara reservation.'' He reviews reservations to 
        earlier treaties which might serve as precedents and examines 
        other grounds for questioning the claim that the reservation is 
        invalid. He argues: ``Even if the provision contains no element 
        of international obligation, it is a provision like one in 
        other United States treaties which relates to the subject and 
        purposes of the treaty and to its implementation. The provision 
        is another instance of the exercise of an accepted power of the 
        President and Senate to invite Congressional cooperation in the 
        treaty function * * *. This was a recognition, yet another time 
        in our history, that the legislative power of Congress 
        intersects and supplements the treaty powers and that a 
        specific instance may call for cooperation between these powers 
        rather than isolated operation of each.''
Institute on the Law of Treaties and the State-Federal Relationship, 
        University of Missouri, 1969. Proceedings. Edited by Frederick 
        W. Hess. [Kansas City] University of Missouri-Kansas City 
        [1970] 74 p. Sponsored by the Law Center of the University of 
        Missouri, Kansas City, and the American Society of 
        International Law. Held June 6, 1969.
      ``That the subject matter of international agreements has grown 
        over the last 150 years into areas previously not amenable to 
        treaty regulation is obvious to anyone studying cultural, 
        commercial, administrative and scientific topics which have 
        been thus regulated in recent decades. The question may arise: 
        What factors bring about this development, what are its 
        limitations, and to what extent has international regulation 
        made inroads into areas once reserved to domestic jurisdiction?
      The second aspect of the treaty problem affects the United 
        States. Here, faced with our constitutional framework, we may 
        ask ourselves to what extent our notions of the Federal treaty 
        power have remained in harmony with those of other countries, 
        and whether international agreements may today settle matters 
        once thought to be exclusively in the constitutional province 
        of the states * * *.
      ``In examining the issue, prominent consideration was given to 
        the United Nations Convention on the Law of Treaties.''
Jefferson, Thomas. ``Sec. LII--Treaties,'' of Jefferson's manual of 
        parliamentary practice. In U.S. Congress. House. Constitution, 
        Jefferson's manual and rules of the House of Representatives of 
        the United States, One Hundred Sixth Congress. Compiled by 
        Charles W. Johnson, Parliamentarian. Washington, U.S. 
        Government Printing Office, 1999. pp. 300-303. (105th Cong., 2d 
        Sess. House. Document no. 105-358)
Kearney, Richard D. Internal limitations on external commitments.--
        Article 46 of the Treaties Convention. International lawyer, v. 
        4, Oct. 1969: 1-21.
      Richard Kearney discusses Article 46 of the Vienna Convention on 
        the Law of Treaties. The article deals with ``the conflict 
        between constitutional limitations upon the authority to commit 
        the state internationally and the necessity of international 
        reliance upon apparent authority to commit the State 
        internationally.''
Kuchenbecker, David J. Agency-level executive agreements: a new era in 
        U.S. treaty practice. Columbia journal of transnational law, v. 
        18, no. 1, 1979: 1-77.
      ``This Article examines in detail the employment of agency-level 
        executive agreements as an instrument of U.S. treaty practice. 
        It focuses not only on the legal instrument itself but upon 
        what its use reflects about the changes within the government 
        as virtually every nondiplomatic agency enters into 
        international agreements on behalf of the United States * * *. 
        Examines the legal authority for, and consequences of, the 
        agency-level device, noting the similarities and contrasts with 
        executive agreements generally and the recent developments in 
        U.S. treaty practice that have affected its negotiation * * *. 
        Provides a brief description of the State Department's current 
        relationship with other executive branch agencies regarding the 
        negotiation process * * *. Assesses the current state of the 
        agencies' agreement practice, identifying the strengths and 
        weaknesses thereof, examples of intra-agency disputes involving 
        the State Department, and congressional action, in the form of 
        newly enacted legislation, to remedy some of the weaknesses.''
Law of Treaties. In Research in international law; under the auspices 
        of the faculty of Harvard Law School. Supplement (to the) 
        American journal of international law, v. 29, 1935. pp. 655-
        1240.
      ``Drafts of conventions prepared for the codification of 
        international law.'' ``Part III [law of treaties] with Index 
        bound in this volume.'' Pagination for volume begins with p. 
        655.
Meron, Theodor. Article 46 of the Vienna Convention on the Law of 
        Treaties (ultra vires treaties): some recent cases. British 
        year book of international law, v. 49, 1978: 175-199.
      ``Article 46 of the Vienna Convention was invoked in the Senate 
        of the United States with regard to the Sinai II Agreements of 
        1975 and with regard to the Panama Canal Treaties of 1972. In 
        both cases, it was in the legislative branch rather than in the 
        executive branch, that it was argued that constitutional 
        provisions regarding competence to conclude treaties were 
        violated and that certain agreements were ultra vires under 
        such constitutional provisions.''
Paust, Jordan J. Self-executing treaties. American journal of 
        international law, v. 82, Oct. 1988: 760-783.
      ``The distinction found in certain cases between `self-executing' 
        and `non-self-executing' treaties is a judicially invented 
        notion * * *. When did the judicially created distinction first 
        occur? How has it actually been used in the Supreme Court's 
        history? Should the distinction be retained?''
Tolley, Howard B. The domestic applicability of international treaties 
        in the United States. Lawyer of the Americas, v. 15, spring 
        1983: 71-88.
      ``Following over a century of precedent, United States courts 
        refused to enforce the provisions of treaties which conflict 
        with later Congressional acts. Case law and commentary 
        uniformly support the `last-in-line' doctrine virtually without 
        exception. This paper examines the origin, evolution and 
        application of the last-in-line rule. After identifying points 
        of agreement with prevailing authority, the text affirms a 
        principle of treaty priority which challenges five key elements 
        of the last-in-line rule.''
U.S. Constitutional Convention, 1787. The debates in the Federal 
        Convention of 1787, which framed the Constitution of the United 
        States of America. Reported by James Madison. International 
        ed., Gaillard Hunt and James Brown Scott, editors. Westport, 
        Conn., Greenwood Press [1970] 731 p.
      The treaty ratification process is discussed on pp. 532-534. An 
        extremely detailed index, with House and Senate listed under 
        Legislative and the President listed under Executive, provides 
        access to coverage of other issues.
U.S. ratification of the human rights treaties with or without 
        reservations? Edited for the International Human Rights Law 
        Group by Richard B. Lillich. Charlottesville, University Press 
        of Virginia, 1981. 203 p.
U.S. ratification of the international covenants on human rights. 
        Edited by Hurst Hannum and Dana D. Fischer. Irvington-on-
        Hudson, N.Y., Transnational Publications, 1993. 343 p.
      At head of title: The American Society of International Law.
Weinfeld, Abraham C. What did the framers of the Federal Constitution 
        mean by ``agreements or compacts?'' University of Chicago law 
        review, v. 3, Apr., 1936: 453-469.
      In this comment, Weinfeld examines the Articles of Confederation, 
        the drafts that preceded them, and the Federal Convention of 
        1787 to determine the difference between a ``treaty'' and an 
        ``agreement or compact,'' since ``a state, may not enter into a 
        treaty but it may enter into an agreement or compact with 
        consent of Congress.''
      Weinfeld contends that the words ``agreements'' or ``compacts,'' 
        in contrast to ``treaties,'' were used as technical terms and 
        carried a definite meaning. He examines the literature on 
        international law known in this country in 1787 to determine 
        that meaning. Weinfeld concludes: ``To summarize `agreements or 
        compacts' as intended by the framers of the Constitution 
        included 1) settlements of boundary lines with attending 
        cession or exchange of strips of land, 2) regulation of matters 
        connected with boundaries as for instance regulation of 
        jurisdiction of offenses committed on boundary waters of 
        fisheries or of navigation.''
Whiteman, Marjorie M. Treaties and other international agreements. In 
        The Digest of international law. Vol. 14. Washington, 
        Department of State, U.S. Government Printing Office, 1970. pp. 
        1-510.
      The Assistant Legal Adviser of the Department of State reviews 
        the making and enforcement of treaties and international 
        agreements. She quotes from and cites published and unpublished 
        documents issued by the International Law Commission, U.S. 
        Presidents, and the U.S. Department of State. She also cites 
        the Vienna Convention of the Law of Treaties, the U.S. 
        Constitution, and congressional documents and debates.
      Contents.--Meaning of terms.--Capacity to make.--Negotiation and 
        conclusion.--Ratification.--Adherence or accession.--Acceptance 
        or approval.--Procedure after ratification.--Reservations.--
        Executive agreements.--Validity.--Enforcement.--
        Interpretation.--Termination or suspension.
Wildhaber, Luzius. Treaty-making power and constitution: an 
        international and comparative study. Basel, Stuttgart, Helbing 
        & Lichtenhahn, 1971. 412 p.
      ``This book presents a comparative study of the treaty-making 
        power in a series of countries. The first part describes and 
        evaluates the distribution of powers between legislative, 
        executive, courts and populace with respect to the agreement-
        making process. The second part deals with the distribution of 
        powers between the federal government and the member units in 
        federal states. The third part inquiries into the limitations 
        upon the treaty-making power which results from constitutional 
        prohibitions, particularly into judicial review of treaties and 
        the feasibility of transferring state competencies to 
        international organizations * * *.''
      ``I shall discuss the interplay between legislature and executive 
        with respect to international agreements in Great Britain, 
        Canada, Australia, the United States, France, Belgium, the 
        Netherlands, the Federal Republic of Germany, Australia, and 
        Switzerland.''
Wright, Quincy. The control of American foreign relations. New York, 
        Macmillan, 1922. 412 p.
      ``This essay seeks to draw particular attention to a difficulty 
        in the control of foreign relations found in every government, 
        but especially in a government with powers defined in a 
        judicially enforced written constitution. This is the 
        difficulty which arises from the fact that the organs 
        conducting foreign relations. have their responsibilities 
        defined by international law, which their powers are defined by 
        constitutional law. Since the sources of these two bodies of 
        law are different, a lack of coordination between the powers 
        and the responsibilities of these organs is to be expected. To 
        avoid confusion the writer has considered the subject from the 
        international point of view and from the [U.S.] constitutional 
        point of view in separate parts of the book.''
------. Treaties and the constitutional separation of powers in the 
        United States. American journal of international law, v. 12, 
        Jan. 1915: 64-95.
      Wright examines the treaty power in relation to legislative and 
        juridical powers. He concludes: ``It appears that the principle 
        of separation of powers imposes no limitation upon the treaty-
        making power. If the subject is appropriate for treaty 
        negotiation, consonant with the purposes of the Constitution, 
        and in violation of none of its specific prohibitions, the 
        treaty, if ratified, is valid, and all other departments of 
        government--the legislative, executive and judiciary--are bound 
        by their allegiance to the Constitution to perform the acts 
        necessary to give it effect. Considering the practical working 
        of the government, this capacity of the treaty power to impose 
        obligations upon the other independent departments is not 
        remarkable. Practically every valid act of one department does 
        the same * * *.
      ``Where the cooperation of another department is required it 
        would always be appropriate for the treaty power itself to 
        consider the opinion of the departments concerned, especially 
        if the prerogatives of Congress are involved, before ratifying 
        the treaty, but such action would seem to be dictated by 
        courtesy or expediency rather than legal necessity.''
 2. congressional and presidential roles in the making of treaties and 
                        international agreements
Berger, Raoul. The presidential monopoly of foreign relations. Michigan 
        law review, v. 71, Nov. 1972: 1-58.
      Berger discusses ``presidential executive agreements, and whether 
        the Senate may be excluded from knowledge of, and participation 
        in, negotiations with foreign nations as a part of the treaty-
        making process.''
Bestor, Arthur. Respective roles of Senate and President in the making 
        and abrogation of treaties--the original intent of the framers 
        of the Constitution historically examined. Washington law 
        review, v. 55, no. 1, 1979-1980: 4-135.
      This study ``seeks to determine the original intent of the 
        framers of the American Constitution as evidenced by the 
        documents dating from the period during which the Constitution 
        and its predecessor, the Articles of Confederation, were drawn 
        up and adopted--roughly the period from 1776 through 1789.''
Biden, Joseph R., Jr. Ritch, John B., III. The Treaty power: upholding 
        a constitutional partnership. University of Pennsylvania law 
        review, v. 137, May 1989: 1529-1557.
      A member of the Senate Foreign Relations Committee and the Deputy 
        Staff Director of the same committee ``recount significant 
        events leading to the Senate's repudiation or the Sofaer 
        Doctrine and offers a rationale for the necessity of the 
        Senate's action.''
Borchard, Edwin. Shall the executive agreement replace the treaty? Yale 
        law journal, v. 53, Sept. 1944: 664-683.
      Examines the basis of proposals to substitute executive 
        agreements for treaties, reviews historical distinctions 
        between treaties and agreements, and describes types of 
        executive agreements. Contends that ``in the few instances 
        where the President has used his power to make executive 
        agreements in a field important enough to warrant a treaty * * 
        * explanation can be found in the apparent Senate acquiescence 
        in the particular assumption of executive power.''
      Reviews objections to the use of executive agreements as a 
        substitute for treaties, contending that it is an evasion of 
        the Constitution, and that executive agreements are of limited 
        utility because their durability is precarious. Considers the 
        impact of Supreme Court opinions on executive agreements. 
        Concludes ``Proponents of a constitutional amendment do not 
        take into account the new troubles they would encounter if the 
        President did not belong to the same party as the majority of 
        one or both of the two Houses. They also fail to realize that 
        it might be easier to get a two-thirds vote of approval in the 
        Senate, if a given treaty warrants support, than a majority in 
        a hostile House or Senate, for the nature of the proposed 
        change is such that it might make the congressional `veto' more 
        political than it has been in the past.''
Briggs, Herbert, W. The Leaders' agreement at Yalta. American journal 
        of international law. v. 40, Apr. 1946: 376-383.
      In this commentary, Briggs contends: ``There are sufficient 
        precedents to justify the conclusion that the President has the 
        Constitutional competence to conclude internationally binding 
        military agreements without the advice and consent of the 
        Senate * * *. At the same time, the price exacted by Marshal 
        Stalin made the agreement much more than a military agreement. 
        Its provisions that the claims of the Soviet Union should be 
        unquestionably fulfilled after Japan has been defeated refer to 
        the transfer of Japanese territory and the shackling of Chinese 
        territory and contain commitments of such uncertain meaning and 
        doubtful duration as to raise serious doubts as to the 
        President's constitutional competence to commit the United 
        States by executive agreement.
      ``There is no reason * * * why all executive agreements should be 
        regarded as of equal validity; more especially there is no 
        reason in law--national or international--why a succeeding 
        administration should not treat an executive agreement made 
        outside his competence by a preceding Executive as merely his 
        personal pledge never binding under international law in the 
        United States.''
Buechler, Gary Michael. Constitutional limits on the President's power 
        to interpret treaties, the Sofaer Doctrine, the Biden 
        Condition, and the Doctrine of Binding Authoritative 
        Representations. Georgetown law journal, v. 78, Aug. 1990: 
        1983-2024.
      ``This note argues that neither the Biden Condition on or the 
        Sofaer Doctrine [which attempt to define the scope of the 
        President's authority to interpret treaties within the 
        constitutional allocation of the treaty-making power] strikes 
        the proper constitutional balance of treaty-making power 
        between the Executive and the Senate. It proposes a new 
        formulation, the Doctrine of Binding Authoritative 
        Representations (DBAR), to govern the use of implicit 
        conditions binding the Executive to its representations and 
        thus restricting its power to interpret treaties.''
Byrd, Elbert M., Jr. Treaties and executive agreements in the United 
        States: their separate roles and limitations. The Hague, 
        Martinus Nijhoff, 1960. 276 p.
      Byrd examines the roles and limitations of treaties and executive 
        agreements, drawing upon the Constitution, the intentions of 
        the framers of the Constitution, Supreme Court opinions, and 
        the use of international agreements by the U.S. throughout its 
        history. He considers executive agreements necessary for the 
        national security of the United States ``in a dangerous world, 
        in which conditions are subject to swift change,'' and contends 
        that treaties should only be used for agreements which affect 
        the powers reserved for the States.
Byrd, Robert C. Treaties. In his The Senate, 1789-1989: addresses on 
        the history of the United States Senate. Vol. 2. Bicentennial 
        ed. Edited by Wendy Wolff. Washington, U.S. Government Printing 
        Office, 1991. (Document, Senate, 100th Cong., 1st Sess., no. 
        100-20) (Senate Bicentennial publication) pp. 1-23. Originally 
        delivered in the Senate on Apr. 10 and Apr. 29, 1987, and 
        updated June 1989.
Cohen, Richard. Self-executing executive agreements: a separation of 
        powers problem. Buffalo law review, v. 24, fall 1974: 137-158.
      In this comment, the author argues that ``as a matter of domestic 
        law, the President may make international agreements other than 
        treaties.'' He evaluates ``the various approaches which have 
        been used to ascertain the origin and nature of the 
        qualifications limiting presidential power to make self-
        executing executive agreements.''
Colegrove, Kenneth Wallace. The American Senate and world peace. New 
        York, Vanguard Press [1944] 209 p.
      The author contends that the U.S. treatymaking process is 
        inadequate and undemocratic. He draws on examples of Senate 
        involvement in the treaty-making process, especially the defeat 
        of the Covenant of the League of Nations in the Senate. 
        Colegrove also describes instances in which the President has 
        relied upon executive agreements, rather than treaties. He 
        suggests that abolition of the two-thirds rule and of the 
        Senate monopoly in ratification of treaties would lead to 
        greater cooperation between the Congress and the President 
        regarding foreign policy, and he discusses the problem of 
        constitutional reform of the treatymaking process. 
        Congressional Quarterly, Inc. Making foreign policy. 
        Washington, Congressional Quarterly, 1988. 119 p.
      Contents.--Making foreign policy.--National Security Council.--
        Treaty ratification.--Defending Europe.--Euromissile 
        negotiations.--The military build-down in the 1990s.--Persian 
        Gulf oil.--Dollar diplomacy. Reports originally appeared in 
        Editorial research reports.
Damrosch, Lori Fisler. The role of the United States Senate concerning 
        `self-executing' and `non-self-executing' treaties. Chicago-
        Kent law review, no. 3, v. 67, 1991: 515-532.
      Examines ``the usage of non-self-executing declarations in recent 
        U.S. practice, with examples drawn from human rights treaties 
        and economic agreements * * *. Considers and criticizes the 
        several rationales that might be proffered in justification of 
        the use of non-self-executing declarations, and contends the 
        device should be confined to the limited class of cases when 
        the House of Representatives is expected to become actively 
        engaged in implementing the treaty.''
Dangerfield, Royden J. In defense of the Senate: a study in treaty-
        making. Norman, University of Oklahoma, 1933. 365 p.
      The author ``attempts a systematic analysis of the effect of the 
        Senate's participation in the ratification of treaties. An 
        effort is made to measure quantitatively the effect of the 
        Senate's actions in dealing with 832 treaties, including all 
        treaties signed on behalf of the United States during the 
        period from February 6, 1778 to February 6, 1928.'' ``The 
        factors influencing Senate action are isolated for more 
        detailed study by the application of the statistical method. 
        The effects of the present organizations and institutions are 
        weighed. The interplay of personalities is placed in the 
        setting of legislative-executive conflict.''
Executive-congressional relations and the treaty ratification process; 
        conference report, Jan. 17-19, 1991. Washington, Woodrow Wilson 
        International Center for Scholars, the Henry L. Stimson Center, 
        1991. 20 p.
      Partial contents.--Case studies of successful treaty ratification 
        efforts.--Case studies of failed treaty ratification efforts.--
        Legal and constitutional issues.--The joint chiefs and 
        ratification.--Executive-congressional relations.
Fitzgerald, Peter L. Executive agreements and the intent behind the 
        treaty power. Hastings constitutional law quarterly, v. 2, 
        summer 1975: 757-771.
      This note examines ``the use of executive agreements in United 
        States foreign policy, as a means of concluding international 
        compacts * * *. The author examines the effect this trend has 
        on the formal treaty process and the balance of power between 
        the executive and legislative branches.''
Fleming, Denna Frank. The treaty veto of the American Senate. New York, 
        G.P. Putnam's Sons, 1930. 325 p.
      Fleming contends that ``the failure of treaties for the 
        advancement of peace in the administration of every President 
        since Benjamin Harrison left office, in 1893, creates a 
        situation which calls for study and appraisal.''
      Contents.--The origins of the Senate's power over treaties.--The 
        relation of the Senate to the negotiation of treaties.--The 
        Senate's assertion of a right to amend treaties.--Treaties 
        rejected by the Senate.--The action of the Senate on 
        arbitration treaties.--The earlier treaties of peace in the 
        Senate [from the Jay Treaty of 1794 through the Treaty of Paris 
        of 1898].--The struggle over the League of Nations.--The Senate 
        reservations to the Treaty of Versailles.--The attempt to enter 
        the Permanent Court of International Justice.--The results of 
        the World Court reservations.--Interpretations of the Paris 
        Peace Pact.--Some conclusions on the legislative control of 
        treaties.
Forkosch, Morris D. The United States Constitution and international 
        relations: some powers and limitations explored. California 
        Western international law journal, v. 5, winter 1975: 219-270.
      This article analyzes the way in which the foreign relations of 
        the United States may be subject to the restrictions imposed by 
        some constitutional clauses. Concludes that constitutional 
        powers and limitations in foreign relations abound ``but there 
        is no definitive understanding of their meaning. The executive 
        and judicial interpretations have conflicted, the legislative 
        conflict with the executive over power and jurisdiction has 
        flourished, and there comes through a hopeless feeling that no 
        concrete resolution will ever occur.''
Friedlander, Robert A. Should the U.S. Constitution's treaty-making 
        power be used as the basis for enactment of domestic 
        legislation? Implications of the Senate approved genocide 
        convention. Case Western Reserve journal of international law, 
        v. 18, spring 1986: 267-282.
Fryer, Keith E. Levengood, J. Michael. Arms control: SALT II--executive 
        agreement or treaty? Georgia journal of international & 
        comparative law, v. 9, winter 1979: 123-136.
      The article examines the question of ``whether there exist 
        constitutional as well as political restraints upon executive 
        discretion to classify agreements.''
Furlong, William L. Scranton, Margaret E. The dynamics of foreign 
        policymaking: the President, the Congress, and the Panama Canal 
        treaties. Boulder, CO, Westview Press,  1984. 263 p.
      Contents.--Introduction and analysis.--From conception and 
        construction to the new treaties.--Why change Panama Canal 
        policy?--Assessing executive impact: Presidents, their 
        administrations, and the treaties.--Congress and the 
        treaties.--Implementation legislation and impacts.--
        Explanations, costs, and conclusions.
Garrett, Stephen A. Foreign policy and the American Constitution; the 
        Bricker Amendment in contemporary perspective. International 
        studies quarterly, v. 16, June 1972: 187-220.
      Garrett relates the controversy in 1954 over the Bricker 
        amendment, which sought to establish congressional control over 
        treaties and executive agreements, to the senatorial campaign 
        for greater influence over U.S. policy in Vietnam during the 
        late 1960s and early 1970s. He examines the general problem of 
        executive-congressional conflict regarding foreign policy and 
        the roles Congress can and should have in foreign policy 
        decisionmaking.
Gilbert, Amy M. Executive agreements and treaties, 1946-1973; framework 
        of the foreign policy of the period. Endicott, N.Y., Thomas-
        Newell, 1973. 213 p.
      The author reviews the types of executive agreements and traces 
        ``the channeling of foreign affairs through international 
        agreements.'' since World War II. Chapter 6 covers the 
        assessment of international agreements by the Bricker movement 
        in the 1950s, and principal versions of the Bricker amendment 
        are reprinted in Appendix A.
Glennon, Michael J. Constitutional diplomacy. Princeton, N.J., 
        Princeton University Press,  1990. 353 p.
------. The Senate role in treaty ratification. American journal of 
        international law, v. 77, Apr. 1983: 257-280.
      ``A nation with more than one governmental hand at the foreign 
        policy helm can incur costs in credibility. The hand that signs 
        is not the hand that delivers; what looks like a good bargain 
        to diplomats at the negotiating table may look altogether 
        different to legislatures in the cold light of constituents' 
        mail. The domestic value of pluralistic governmental 
        decisionmaking thus competes with the international value of 
        reciprocal expectations. The tension between these values is 
        particularly evident in the making of the foreign policy of the 
        United States * * *. Generated principally by Watergate and 
        Vietnam, the reassertion by Congress of its foreign policy 
        prerogatives has raised new questions concerning the respective 
        scope of legislative and executive powers in the making of 
        international agreements. This article analyzes several newly 
        arisen issues that reflect the heightened `value tension' 
        described above, and it suggests resolutions consistent with 
        the vindication of both values.''
Hardwick, Deborah Godich. The Iranian Hostage Agreement cases: the 
        evolving Presidential claims settlement power. Southwestern law 
        journal, v. 35, Feb. 1982: 1055-1077.
      ``This Comment traces the President's role in international 
        affairs and the Presidential power to enter into executive 
        agreements from the earliest days of the nation to the present. 
        Particular emphasis is placed on the evolution of the 
        President's power to settle claims of United States citizens by 
        executive agreement. In addition, this Comment examines several 
        recent cases arising out of the Iranian Hostage Agreement, and 
        the impact of Dames & Moore v. Regan, the Supreme Court's 
        initial response to the Iranian Hostage Agreement.''
Hayden, Joseph Ralston. The Senate and treaties, 1789-1817; the 
        development of the treaty-making functions of the United States 
        Senate during their formative period. New York, Da Capo Press, 
        1970 [ 1920] 237 p.
      The author surveys the treatymaking functions of the Senate from 
        1789 through 1817 in an attempt ``to discover the conception of 
        the place of the Senate in treaty-making then held by the 
        various departments of the government, to trace the development 
        of the procedure of the Senate in the transaction of treaty 
        business, to ascertain the relations between the Senate and the 
        executive in this field, and to investigate the effect of the 
        position of the Senate in our constitutional system upon the 
        relations between the United States and other nations.''
Henkin, Louis. Foreign affairs and the Constitution. Foreign affairs, 
        v. 66, winter 1987-88: 284-310.
      ``After 200 years the difficult constitutional issues of foreign 
        affairs arise from the so-called separation of powers and the 
        various checks and balances between Congress and the president 
        * * *. The constitutional blueprint has proved to be unclear 
        and incomplete as regards foreign affairs, and there is no 
        agreed guiding principle to help make its provisions clear, or 
        to fill the lacunae. National experience has provided some 
        answers, but Congress and president continue to tug for more of 
        the foreign policy blanket.''
Holt, William Stull. Treaties defeated by the Senate; a study of the 
        struggle between President and Senate over the conduct of 
        foreign relations, Gloucester, Mass., P. Smith, 1964 
        [ 1933] 328 p.
      Holt examines ``the circumstances attending the defeat of every 
        treaty [from 1789 to 1920] that failed of completion through 
        the action of the Senate, in the hope of ascertaining which 
        were lost either because of domestic politics or because of the 
        const between President and Senate.''
Hyman, Sharon G. Executive agreements: beyond constitutional limits? 
        Hofstra law review, v. 11, winter 1983: 805-844.
      ``This note analyzes the international agreement-making powers of 
        the President by examining the various categories of 
        international agreements, the claimed authority for each, and 
        the problems associated with each type of agreement. Relevant 
        court decisions dealing with the parameters of presidential 
        powers in foreign affairs are discussed and controversial 
        agreements and the resulting tension between Congress and the 
        Executive are examined. The difficult issue of executive 
        discretion in choosing the particular mode of agreement is 
        explored, as are congressional attempts to exert control over 
        the Executive in this area. Finally, the need for a system of 
        greater consultation between the legislative and executive 
        branches is discussed and a concluding proposal is suggested.''
Jackson, John H. Status of treaties in domestic legal systems: a policy 
        analysis. American journal of international law, v. 86, Apr. 
        1992: 310-340.
      ``This article explores some of the policy considerations 
        relating to the effect of an international treaty in domestic 
        law.''
Johnson, Loch K. The making of international agreements: Congress 
        confronts the executive. New York, New York University Press, 
        1984. 206 p.
      This work explores the ``disagreements among policymakers and 
        scholars concerning the proper executive-legislative balance in 
        the making of international agreements.'' Chapter one of this 
        book discusses the procedures of agreement-making. Chapter two 
        examines the targets of American overseas commitments. 
        Agreement-making within the area of military policy is examined 
        in chapter three. Chapters four and five examine the operations 
        of the Congress. Chapter six summarized the theme of the 
        volume, that foreign policy should be conducted on the basis of 
        a partnership between the executive and legislative branches, 
        and outlines some * * * prescriptions toward this end with 
        respect of agreement-making.
Johnson, Loch. McCormick, James M. The democratic control of 
        international commitments. Presidential studies quarterly, v. 
        8, summer 1978: 275-283.
      ``This paper assesses the extent to which democratic controls 
        have operated in the making of American commitments abroad in 
        the postwar period. First, we survey the volume and content of 
        agreements made by the United States from 1946 to 1972. 
        Secondly, we analyze the form that these agreements have 
        taken--treaty, statutory agreement and executive agreement. 
        While the preponderance of agreements have taken forms 
        involving both the Congress and the Executive, * * * a small, 
        but significant, group of commitments have not.''
Kaufman, Natalie Hevener. Whiteman, David. Opposition to human rights 
        treaties in the United States Senate: the legacy of the Bricker 
        Amendment. Human rights quarterly, v. 10, Aug. 1988: 309-227.
      ``Thirty years after the defeat of the Bricker Amendment, the 
        covenants and most other major human rights treaties have yet 
        to receive Senate approval. During the same period, these 
        covenants have been ratified by eighty-five other nations, 
        including fifteen Western democracies. The question which 
        deserves our attention is why the United States has not 
        ratified these treaties as well.''
Koh, Harold Hongju. The President versus the Senate in treaty 
        interpretation: what's all the fuss about? Yale journal of 
        international law, v. 15, summer 1990: 331-344.
      ``Article II of the Constitution mandates that the Senate and 
        President act as partners in the treaty process, with each 
        institution fulfilling a constitutional role * * *. Even when 
        particular issues prove contentious, as recently occurred 
        during the Anti-Ballistic Missile (ABM) * * *. the two branches 
        simply need one another too much to allow political stalemate 
        and acrimony to persist indefinitely.''
Koplow, David A. When is an amendment not an amendment?: modification 
        of arms control agreements without the Senate. University of 
        Chicago law review, v. 59, summer 1992: 981-1072.
      ``Several recent international agreements limiting nuclear or 
        other advanced weaponry purport to authorize the parties to 
        modify some of their negotiated terms through informal 
        mechanisms other than the traditional treaty amendment, thereby 
        cutting the United States Congress out of the revision process 
        * * *. This Article dissects the legal and policy issues raised 
        by this proposed avenue for creating new treaty terms. It 
        offers a critique of the practice and some recommendations for 
        constraining the danger before a constitutional crisis fully 
        erupts.''
Kuchenbecker, David J. Agency-level executive agreements: a new era in 
        U.S. treaty practice. Columbia journal of transnational law, v. 
        18, no. 1, 1979: 1-77.
      ``This article examines in detail the employment of agency-level 
        executive agreements as an instrument of U.S. treaty practice * 
        * *. Section 3 assesses the current state of the agencies' 
        agreement practice, identifying the strengths and weaknesses 
        thereof, examples of intra-agency disputes involving the State 
        Department, and congressional action, in the form of newly 
        enacted legislation, to remedy some of the weaknesses.'' The 
        ``weaknesses'' include lack of cooperation by agencies with the 
        State Department in meeting the requirements of the Case Act, 
        that executive agreements be transmitted to Congress within 60 
        days of their execution.
Leary, Margaret A. International executive agreements: a guide to the 
        legal issues and research sources. Law library journal, v. 72, 
        winter 1979: 1-11.
      ``This article outlines the legal issues, both current and 
        historical, raised by the use of executive agreements in 
        international matters and cites the most useful sources for 
        further research.''
Lippa, Alison V. The legality, efficacy, and future use of 
        international executive agreements: an analysis of agreements 
        in criminal matters. American criminal law review, v. 29, 
        summer 1992: 1301-1348.
      ``The first half of the [comment] discusses the general 
        constitutional background of executive agreements and focuses 
        on their impact on the separation of powers doctrine. The 
        second half of the [comment] deals more specifically with sole 
        executive agreements which facilitate the exchange of 
        information between nations in investigations of criminal 
        matters. The [comment] concentrates on case-specific and issue-
        specific agreements and analyzes the utility of such agreements 
        in light of alternative ways of obtaining mutual assistance for 
        the sharing and transferring of information and evidence in 
        criminal investigations and prosecutions.''
Loeb, Benjamin S. Amend the Constitution's treaty clause. Bulletin of 
        the atomic scientists, v. 43, Oct. 1987: 38-41.
      ``The Constitution's two-hundredth anniversary presents an ideal 
        occasion, says the author, to reexamine the outmoded 
        requirement that treaties be ratified by a two-thirds vote of 
        the Senate.''
Majak, R. Roger. International agreements, an analysis of executive 
        regulations and practices. Prepared for the use of Committee on 
        Foreign Relations, United States Senate by the Congressional 
        Research Service, Library of Congress, 1974-1975. Washington, 
        U.S. Government Printing Office, 1977. 73 p.
      This ``study attempts to describe the procedures and practices by 
        which international agreements are formulated and entered into 
        by the United States, and to assess those procedures and 
        practices in terms of possible improvements in congressional 
        oversight and involvement.'' The study is based on primary 
        documents and interviews with officials involved in making 
        international agreements on behalf of the United States. A 
        chart, consisting of 22 folded leaves, is included in the 
        pocket. It compares successive State Department procedures 
        regarding treaties and international agreements of the U.S. 
        under the Original Circular 25 of May 15, 1953; Circular 175 of 
        December 13, 1955; Circular 175 of June 6, 1969; proposed 
        revision of Circular 175 of August 15, 1973; and the final 
        revised Circular 175 of October 25, 1974. ``96th Congress, 1st 
        session. Committee print.''
Mathews, Craig. The constitutional power of the President to conclude 
        international agreements. Yale law journal, v. 64, Jan. 1955: 
        345-389.
      Examines the scope of the President's power to conclude 
        international agreements when he acts without the authorization 
        of Congress or the Senate. Also considers to what extent 
        Congress can constitutionally limit the President in the 
        exercise of this power.
McClure, Wallace M. International executive agreements; democratic 
        procedure under the Constitution of the United States. New 
        York, Columbia University Press, 1941. 449 p.
      McClure surveys the use of executive agreements and treaties, 
        contends that treaties and executive agreements have been used 
        interchangeably in the past, and examines the constitutional 
        powers of the President and Congress regarding international 
        agreements. He argues that to require assent of two-thirds of 
        the Senate for treaty ratification is to promote a form of 
        minority rule. McClure contends: ``There is nothing that can be 
        done by treaty that cannot be done by Congress--confirmed 
        executive agreement, which, viewed as an instrument of national 
        policy, is simply a democratic treaty--a treaty enacted through 
        democratic processes.''
McDougal, Myres S. Lans, Asher. Treaties and congressional-executive or 
        Presidential agreements: interchangeable instruments of 
        national policy. Yale law journal, v. 54, Mar. 1945: 181-351; 
        June 1945: 534-615.
      The authors refute the suggestions that executive agreements must 
        be confined to unimportant matters, in light of the broad 
        constitutional powers of the Congress and the President. They 
        describe how congressional-executive and Presidential 
        agreements have become interchangeable with treaties in U.S. 
        diplomatic practice. McDougal and Lans compare the legal 
        consequences which courts and other governmental officials 
        attach to congressional-executive and presidential agreements 
        and treaties, contending that there are no important 
        differences. They examine the reasons ``that are alleged to 
        have motivated the original adoption of the treaty-making 
        procedure,'' appraise their contemporary relevance and consider 
        how congressional-executive and Presidential agreements may be 
        used to meet urgent problems in the post-war world ``if the 
        minority controlled treaty making procedure should for any 
        reason become inadequate to meet the responsibilities of that 
        world.'' Edwin Borchard, in Treaties and Executive Agreements--
        A Reply, which immediately follows the second part of the 
        McDougal-Lans article (pp. 616-664), contends that there are 
        significant differences between treaties and executive 
        agreements. He critiques the proposals by McDougal and Lans for 
        using congressional-executive agreements in place of treaties.
Merin, Kenneth D. The treaty power and congressional power in conflict: 
        cession of United States property in the Canal Zone to Panama. 
        Seton Hall law review, v. 8, no. 3, 1977: 434-459.
      ``After discussing the status of American sovereignty in the 
        Canal Zone, as well as the general scope of the treaty power, 
        this Article * * * examine[s] the grounds on which the 
        Executive branch has based its claim to concurrent power over 
        the disposal of United States territory and property.''
Michelson, Melissa R. Explorations in public opinion--presidential 
        power linkages: congressional action on unpopular foreign 
        agreements. Political communication, v. 15, Jan./Mar. 1998: 63-
        82.
      ``This article explores the effect of public opinion on 
        congressional action on foreign agreements, focusing on the 
        Panama Canal treaties of 1977 and the North American Free Trade 
        Agreement of 1993. The two agreements are highly suited to 
        comparison, and provide an excellent test of how shifts in 
        public opinion influence shifts in congressional support. Two 
        types of opinion are included: (1) the general rating of the 
        President's job performance, and (2) opinion on the foreign 
        agreement being debated in Congress.''
Murphy, John F. Treaties and international agreements other than 
        treaties: constitutional allocation of power and responsibility 
        among the President, the House of Representatives, and the 
        Senate. Kansas law review, v. 23, winter 1975: 221-248.
      This ``Article examines such issues as the scope of the 
        President's independent authority to conclude international 
        agreements, the authority of the President and Congress to 
        combine their powers and conclude so-called congressional-
        executive agreements in place of treaties and the extent to 
        which such agreements are interchangeable with treaties in 
        domestic and international legal effect, and past and present 
        efforts to resolve these problems in the form of legislation 
        and other, more informal procedures. Finally, the Article 
        attempts an appraisal, in light of constitutional law and 
        policy, of the present international agreement-making roles of 
        the President and the two Houses of Congress, and sets forth 
        proposals for possible reforms in this areas.''
Ohly, D. Christopher. Advice and consent: international executive 
        claims settlement agreements. California Western international 
        law journal, v. 5, winter 1975: 271-296.
      In this article, Ohly considers the constitutional power of 
        Congress to check the Presidential use of executive agreements 
        in settling international claims by nationals of the United 
        States against foreign governments.
Paige, Joseph. The law nobody knows: enlargement of the Constitution--
        treaties and executive agreements. New York, Vantage Press, 
         1977. 209 p.
      Partial contents.--The constitutional authority for treaty 
        making.--The status of treaty-implementing acts.--Ratification 
        by joint resolution.--Executive agreements.--Judicial 
        development of treaty law.--Suggestions, plans and opinions.
Pan, Stephen C. Legal aspects of the Yalta Agreement. American journal 
        of international law, v. 46, Jan. 1952: 40-59.
      In a survey of various legal questions regarding the Yalta 
        Agreement, Pan reviews actions and statements by President 
        Roosevelt ``which implied that the Yalta Agreement might not be 
        exempt from congressional or Senatorial approval.'' He 
        discusses whether executive agreements are binding on 
        subsequent Administrations since ``an executive agreement is 
        signed by the Chief Executive and not solemnly entered into in 
        the name of the `United States of America' in the form of 
        international `treaties'.''
Rague, Margaret A. The reservation power and the Connally Amendment. 
        New York University journal of international law and politics, 
        v. 11, fall 1978: 323-358.
      ``This note examines the Connally Amendment in the context of the 
        history and present use of the United States Senate reservation 
        power. The Note further measures the Connally Amendment against 
        the yet unfolding international rules with regard to use of the 
        reservation power. The Note also reviews domestic criticism and 
        support of the Amendment and efforts to repeal the Amendment, 
        and examines the future of the Amendment as an instrument of 
        U.S. foreign policy.''
Randall, Kenneth C. The Treaty power. Ohio State law journal, v. 51, 
        no. 5, 1990: 1089-1126.
      ``This Article's thesis is straightforward: Where article II of 
        the Constitution empowers the executive to govern exclusively 
        over a particular topic, the President may unilaterally make, 
        reinterpret, and terminate executive agreements without any 
        senatorial consent * * *. This article will examine executive 
        agreements, the interpretation of international agreements, and 
        the termination of international agreements.''
Reisman, W. Michael. Necessary and proper: executive competence to 
        interpret treaties. Yale journal of international law, v. 15, 
        summer 1990: 316-330.
      ``The complex of separate branches with some overlapping and 
        sequential functions and checks and balances has achieved 
        effectiveness and control in the area of treaty-making and 
        performance.''
Reter, Ronald F. President Theodore Roosevelt and the Senate's ``advice 
        and consent'' to treaties. Historian (New Mexico), v. 44, Aug. 
        1982: 483-504.
      ``The present era of senatorial aggressiveness questions the 
        development of the modern presidency. T.R.'s alleged success in 
        circumventing the Senate is a key element in this development. 
        The constitutional effect and significance of Rooseveltian 
        executive agreements are suspect * * *. A crucial aspect of 
        further investigations must be the separation of reputation 
        from the actual successful exercise of power.''
Rovine, Arthur W. Separation of powers and international executive 
        agreements. Indiana law journal, v. 52, winter 1977: 397-431.
      The author establishes criteria for identifying international 
        agreements and examines criticisms of executive branch 
        practices regarding international agreements, including lack of 
        consultation with Congress. Rovine considers the intention of 
        the framers of the Constitution and the authority of the 
        President to enter into executive agreements based on his 
        constitutional powers. Rovine reviews State Department 
        guidelines listing the variables examined in determining 
        whether a particular agreement should be a treaty or an 
        executive agreement. He suggests that ``if detailed regulation 
        over specific areas proves insufficient for the Congress, then 
        the current conflict between the two branches over 
        international agreements will be resolved not so much by 
        arriving at definitive legal solutions to complex separation of 
        powers issues, but rather through an improved political process 
        that entails an ongoing and cooperative system of consultation 
        on issues of significance.''
Skoblow, David V. The Panama Canal treaties and the property disposal 
        clause: do the treaties propose an unconstitutional giveaway? 
        Georgetown law review, v. 66, Feb. 1978: 871-897.
      ``This Comment examines the constitutional and legal issues 
        raised by the proposed transfer by treaty of sovereignty and 
        property in the Canal Zone, and attempts to determine what 
        rights the United States would relinquish, if the treaties 
        become effective.''
Slonim, Solomon. Congressional executive agreements. Columbia journal 
        of transnational law, v. 14, no. 3, 1975: 434-450.
      ``If indeed the protection of small States and sectional 
        interests was a crucial factor, if not the crucial factor, in 
        the formulation of the treaty-making provision, it appears 
        highly unlikely that a majority vote in both Houses of Congress 
        would represent a superior title to a two-thirds vote in the 
        Senate alone, for the safeguards originally built into the 
        latter provision would be obliterated. Yet, while the attempt 
        to equate congressional-executive agreements with treaties on 
        the basis of the Framers' intentions is shaky at best, the same 
        cannot be said of validation of congressional-executive 
        agreements by reference to subsequent constitutional practice * 
        * *. There still remain various categories of international 
        agreements which do not fall within the scope of congressional 
        powers, whether enumerated or implied. If the intentions of the 
        Founding Fathers were adhered to, these matters would require 
        the advice and consent of two-thirds of the Senate. But, as 
        noted, practice, by and large, has modified the assumption of 
        the Founding Fathers.''
Stevens, Charles J. The use and control of executive agreements: recent 
        congressional initiatives. Orbis, v. 20, winter 1977: 905-931.
      The author examines the use of executive agreements and reviews 
        congressional initiatives to insure legislative involvement in 
        the development of U.S. commitments abroad. Stevens recounts 
        the debate in the 1950s over the Bricker amendment and other 
        proposals to assure legislative control over the effects of 
        treaties and executive agreements. He reviews the findings and 
        recommendations of the Senate Foreign Relations Committee, Ad 
        Hoc Subcommittee on United States Security Agreements and 
        Commitments Abroad (the Symington Subcommittee), in 1970. 
        Stevens also describes U.S. military base negotiations with 
        Spain and the use of a treaty of friendship and cooperation in 
        1976, to replace previous executive agreements with Spain. He 
        discusses the Case Act which requires the Secretary of State to 
        ``transmit to the Congress the text of any international 
        agreement, other than a treaty, to which the United States is a 
        party'' within 60 days of its entry into force. Stevens 
        considers congressional requests that military base agreements 
        with Portugal and Bahrain, concluded in 1971, be submitted for 
        approval as treaties, and subsequent efforts to nullify the 
        effect of the agreements by refusing to appropriate funds for 
        their implementation. He also surveys efforts to revive 
        legislation that would permit a congressional veto of executive 
        agreements.
Strong, Robert A. Jimmy Carter and the Panama Canal treaties. 
        Presidential studies quarterly, v. 21, spring 1991: 269-286. 
        Symposium on Parliamentary Participation in the making and 
        operation of treaties. Edited by Stefan A. Riesenfeld and 
        Frederick M. Abbott. Chicago-Kent law review, v. 67, no. 2, 
        1991: 293-704.
      Partial contents.--The participation of parliament in the 
        elaboration and application of treaties, by Francois 
        Lichaire.--The Role of the United States Senate concerning 
        ``self-executing'' and ``non-self-executing'' treaties, by Lori 
        Fisler Damrosch.--The Constitutional power of the United States 
        Senate to condition its consent to treaties, by Michael J. 
        Glennon.--The scope of U.S. Senate control over the conclusion 
        and operation of treaties, by Stefan A. Riesenfeld and 
        Frederick M. Abbott.--The Role of the President, the Senate and 
        Congress with respect to arms control treaties concluded by the 
        United States, by Phillip R. Trimble, and Jack S. Weise.
Tananbaum, Duane A. The Bricker amendment controversy: its origins and 
        Eisenhower's role. Diplomatic history, v. 9, winter 1985: 73-
        93.
      Examines the controversy during the 83d Congress over the 
        constitutional amendment proposed by Senator Bricker of Ohio 
        that would have limited the effect of treaties and executive 
        agreements within the United States.
Tomain, Joseph P. Executive agreements and the bypassing of Congress. 
        Journal of international law and economics, v. 8, June 1973: 
        129-139.
      In this comment Tomain discusses how the executive branch has 
        significantly increased its power in foreign policy by using 
        executive agreements. He also considers the implications of the 
        Transmittal Act of 1972.
Treaty ratification. Washington, Congressional Quarterly, 1988. 38-51 
        p. (Editorial research reports, 1988, v. 1, no. 4)
      Partial contents.--INF treaty moves on to the next phase in the 
        ratification process.--Prospects for INF ratification; memories 
        of 1979 SALT II treaty.--After the Senate vote: waiting for 
        president and Soviets to respond.
The Transfer of destroyers to Great Britain. American journal of 
        international law, v. 34, Oct. 1940: 569-587, 680-697, 728-736.
      In comments, Quincy Wright (pp. 680-689) and Edwin Borchard (pp. 
        690-697) examine the constitutional authority of President 
        Roosevelt to agree, without congressional consultation, to 
        provide Great Britain with 50 over-age destroyers in exchange 
        for 99-year leases on naval bases in the Caribbean. Both 
        critique Attorney General Robert H. Jackson's Opinion on the 
        exchange, which is reprinted on pp. 728-736. Regarding 
        executive-congressional relations and use of an executive 
        agreement instead of a treaty, Wright contends: ``If the aid of 
        Congress is necessary for fulfillment, the President should, 
        before finally approving the instrument, either get the advice 
        and consent of the Senate, thus making it a treaty in the 
        constitutional sense, or he should get an authorizing act from 
        Congress making appropriations or enacting legislation to 
        fulfill such obligations. Since the present agreement imposed 
        no such obligation requiring Congressional action, neither of 
        these procedures was necessary.''
      Borchard urges ``that the transaction be regularized so far as 
        and as soon as possible by act or resolution of Congress.'' He 
        argues: ``It has been the usual practice, aside from executive 
        agreements in minor matters or under congressional authority, 
        to submit important matters to Congress or the Senate for 
        approval.'' Apart from subordination of Presidential power to 
        the ``applicable provisions of the Constitution,'' ``there are 
        constitutional understandings which require that agreements of 
        great importance, particularly involving the question of war 
        and peace, shall not be concluded by Executive authority 
        alone.''
      He critiques the relevance of precedents cited by the Attorney 
        General, refutes arguments justifying use of an executive 
        agreement instead of a treaty, and also raises questions of 
        international law.
      Herbert Briggs (pp. 569-587) provides historical and legal 
        observations on the transfer of naval vessels from a neutral 
        navy to a belligerent navy.
U.S. Congress. House. Committee on International Relations. 
        Subcommittee on International Security and Scientific Affairs. 
        Congressional review of international agreements. Hearings, 
        94th Cong., 2d Sess., June 22-July 22, 1976. Washington, U.S. 
        Government Printing Office, 1976. 416 p.
      The subcommittee considers legislation providing for 
        congressional review of international executive agreements. 
        Discussion is included on: the Senate's treaty powers, the 
        President's authority to conclude agreements based on his 
        constitutional powers, the power of Congress to demand 
        transmission of agreements and to suspend the entering into 
        force of executive agreements, and the intention of the framers 
        of the Constitution. Individual cases discussed include the 
        Rush-Bagot Agreement of 1817 with Great Britain limiting naval 
        forces on the Great Lakes. Professor Arthur Bestor suggests 
        that one clear precedent which emerges from the handing of the 
        Rush-Bagot Agreement is ``that it is not a prerogative of the 
        President to decide whether an international agreement should 
        be submitted for approval as a treaty. The power to decide 
        belongs to the Senate.'' The subcommittee also considers 
        whether treaties and executive agreements are inter-changeable, 
        as well as the constitutional problems posed by concurrent 
        resolutions and legislative vetoes, the evolution of executive 
        branch use of executive agreements instead of treaties, and the 
        importance of prior consultation and cooperation between the 
        executive and legislative branches in the making of 
        international agreements. Executive branch perspectives on 
        constitutional and practical problems posed by the proposed 
        legislation are also included. Appended to the hearings are 
        texts of bills regarding congressional review of executive 
        agreements, relevant journal articles, executive and 
        congressional documents, and summaries of the hearings, with 
        selected bibliographies on topics addressed.
U.S. Congress. Senate. Committee on Foreign Relations. International 
        agreements consultation resolution; report to accompany S. Res. 
        536. Washington, U.S. Government Printing Office, 1978. 4 p. 
        (95th Cong., 2d Sess., S. Rept. 95-1171)
      The Committee on Foreign Relations reports favorably on S. Res. 
        536 and recommends that the resolution pass. ``The resolution 
        expresses the sense of the Senate that, in determining whether 
        a particular international agreement should be submitted as a 
        treaty, the President should have the timely advice of the 
        Committee on Foreign Relations through agreed procedures 
        established through the Secretary of State. This provision is 
        similar to consultation provisions contained in Senate 
        Resolutions 424 and 486 in the 95th Congress as well as Senate 
        Resolution 24 in the 95th congress, all sponsored by Senator 
        Clark. The latter resolution was incorporated in the Foreign 
        Relations Authorization Act, Fiscal Year 1979 (S. 3076) as 
        section 502, as reported by the committee. This section was 
        stricken on the Senate floor, with the exception of the 
        consultation provision on which the Senate receded in 
        conference.'' This resolution is similar to that provision.''
------. The role of the Senate in treaty ratification. Washington, U.S. 
        Government Printing Office, 1977. 78 p.
      At head of title: 95th Congress, 1st session. Committee Print.
      Partial contents of staff memorandum prepared by M. Hansen.--
        Receipt and committee action.--Amendments, reservations, 
        understanding, interpretations, etc.--Floor action.
      Partial contents of the appendices.--Senate procedure, S. Doc. 
        93-21, excerpt.--the meaning of ``advice and consent of the 
        Senate: in the treaty-making process, by E. Collier, CRS.--
        Treaties returned to the President on the initiative of the 
        Senate, by L. Wu, CRS.--Precedents for U.S. abrogation of 
        treaties, by V. Bite, CRS.
------. Treaty powers resolution. Hearings, 94th Cong., 2d Sess., on S. 
        Res. 468, July 21 and 28, 1976. Washington, U.S. Government 
        Printing Office, 1977. 127 p.
      The committee considers Senate Resolution 486, which ``expresses 
        the sense of the Senate that foreign international agreements 
        involving significant political, military, or economic 
        commitments to foreign countries properly constitute treaties 
        which should be submitted to the Senate for its advice and 
        consent.'' Professor Arthur Bestor reviews the intent of the 
        framers of the Constitution and use of international agreements 
        in the early years of the Republic, considering especially the 
        Rush-Bagot Agreement of 1817-1818, which provided tor the naval 
        demilitarization of the Great Lakes. Professor Richard Falk 
        discusses problems in deciding which commitments should be 
        treaties. Monroe Leigh, Legal Advisor for the Department of 
        State, suggests that the resolution would ``seriously diminish 
        the role of the House of Representatives in authorizing or 
        approving many international agreements * * * would interfere 
        with the President's role as the nation's negotiator of 
        international agreements * * * and would raise questions with 
        respect to the requirements concerning adoption of 
        legislation.''
U.S. Congress. Senate. Committee on Foreign Relations. Subcommittee on 
        United States Security Agreements and Commitments Abroad. 
        Security agreements and commitments abroad; report. Washington, 
        U.S. Government Printing Office, 1970. 28 p.
      At head of title: 91st Congress, 2d Session. Committee Print.
      This report highlights specific findings of the subcommittee 
        during its 22-month study of U.S. commitments abroad. Many of 
        the commitments had been unknown to the Congress prior to the 
        study. The report concludes with recommendations that ``both 
        Congress and the Executive Branch should place more emphasis on 
        new arrangements for continuing, objective review of all 
        aspects of military and military-related programs and 
        activities overseas.''
U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on 
        Separation of Powers. Congressional oversight of executive 
        agreements. Hearing, 92d Cong., 2d Sess., on S. 3475. Apr. 24 * 
        * * May 19, 1972. Washington, U.S. Government Printing Office, 
        1972. 668 p.
      In its consideration of S. 3475, a bill providing for 
        congressional review of executive agreements, the committee 
        examines the constitutional issues and separation of powers 
        problems presented by the increasing use of executive 
        agreements. Statements by Senators, scholars, and executive 
        branch officials are supplemented by relevant government 
        documents, academic publications, and articles from the press.
------. Congressional oversight of executive agreements--1975. 
        Hearings, 94th Cong., 1st Sess., on S. 632 and S. 1251. May 13 
        * * * July 25, 1975. Washington, U.S. Government Printing 
        Office, 1975. 505 p.
      ``The purpose of this inquiry is to examine closely the use of 
        executive agreements, and to explore those remedial measures 
        which might be employed to redress the usurpation of power by 
        the executive branch which has occurred in this area of foreign 
        policy.'' The appendix contains articles, executive documents, 
        and congressional publications concerning the use of executive 
        agreements and treaties in general and in specific instances, 
        including unreported agreements with the Republic of Korea, 
        unreported intelligence agreements, Defense Department 
        agreements, agreements regarding the early warning system in 
        the Sinai, and correspondence regarding U.S. assistance to 
        South Vietnam in the post-settlement period.
------. Treaty ratification process and separation of powers. Hearing, 
        97th Cong., 2d Sess., on S.J. Res. 212. July 30, 1982. 
        Washington, U.S. Government Printing Office, 1982. 201 p. 
        ``Serial no. J-97-128'' Item 1042-A, 1042-B (microfiche)
U.S. Department of State. The law of treaties and other international 
        agreements. In its Digest of United States practice in 
        international law, 1974, by Arthur W. Rovine. Washington, U.S. 
        Government Printing Office, 1975. pp. 195-239.
      Contents.--Section 1.--Conclusion and entry into force.--
        Definition of international agreement.--Procedures.--
        Ratification.--Depository functions.--Section 2.--Observance, 
        application and interpretation.--Section 3.--Amendment and 
        modification.
United States foreign relations law: documents and sources. Edited by 
        Michael J. Glennon [and] Thomas M. Franck. London; New York, 
        Oceana Publications, 1980+ v. 1, 2.
      ``The materials contained in these volumes deal with the foreign 
        relations power of the federal government. For the most part 
        they consist of documents presenting the views of the executive 
        and legislative branches--or components thereof--concerning the 
        scope of their authority.''
      Contents.--Vol. 1.--What constitutes an international 
        agreement?--The power to enter into executive agreements and 
        the role of Congress.--Treaty or executive agreement: choice of 
        instruments.--Congressional controls over executive agreements: 
        recent proposals.--Vol. 2--The role of the Senate in treaty 
        ratification.--Legal consequences of conditions attached to 
        ratification of treaties.--Role of the House of Representatives 
        in the making of international treaties.--Termination of 
        treaties.
Vartian, Armen R. Approval of SALT agreements by joint resolution of 
        Congress. Harvard international law journal, v. 21, summer 
        1980: 421-466.
      ``This Comment will examine the constitutional concerns 
        implicated by the decisionto approve SALT agreements by joint 
        resolution of Congress. It will be argued not only that such 
        agreements are constitutionally valid, but that there should 
        exist a presumption toward use of the joint resolution for SALT 
        agreements. The argument will demonstrate that the three 
        commonly offered `tests' for determining which international 
        agreements require the treaty form are useless in the context 
        of SALT agreements.''
Webb, Richard E. Treaty-making and the President's obligation to seek 
        the advice and consent of the Senate with special reference to 
        the Vietnam peace negotiation. Ohio State law journal, v. 31, 
        summer 1970: 490-515.
      After reviewing E.S. Corwin's judgments on the treatymaking 
        clause, Webb contends that the President does not have the 
        constitutional power to negotiate a peace treaty with North and 
        South Vietnam without the formal advice and consent of the 
        Senate.
Wendel, Gary C. Constitutional authority for executive agreements 
        pertaining to the Armed Forces. Air Force law review, v. 20, 
        1978: 71-86.
      ``Of serious concern to the Senate, however, are those 
        international agreements made by the president without 
        congressional action or senatorial concurrence. This discussion 
        concerns only those agreements made solely on the basis of the 
        President's `constitutional authority'.''
Wright, Quincy. The United States and international agreements. 
        American journal of international law, v. 38, July 1944: 341-
        355.
      Wright examines four perspectives on the constitutional law 
        governing the making of international agreements: 1) that 
        exclusive power to make international commitments is vested in 
        the President acting with advice and consent of two-thirds of 
        the Senate; 2) that the constitutional authority to make 
        international agreements depends on the subject matter of the 
        agreements; 3) that Congress is the sovereign authority in the 
        central government and therefore has authority to determine how 
        international agreements should be made ``apart from explicit 
        constitutional grants to other bodies,'' and 4) ``that the 
        making of international agreements is by nature an executive 
        function,'' and the President can make international agreements 
        on any subject. Wright discusses the assumptions and arguments 
        underlying these perspectives, reviews constitutional history, 
        and surveys the Senate record in treatymaking. He writes: ``The 
        conclusion may be drawn that in the making of international 
        agreements, particularly those concerned with the conclusion of 
        peace and establishment of institutions for perpetuating it, 
        the matter rests in a very real sense in the hands of the 
        President and the people. The President has ample legal power 
        to negotiate, on these subjects, and ample political power if 
        he can command a majority in both Houses of Congress * * *. 
        There has never been any Constitutional bar to concluding 
        international agreements within the scope of Congressional 
        power if desired by the President and a majority of both 
        Houses.''
        3. communication of international agreements to congress
U.S. Congress. House. Committee on Foreign Affairs. Transmittal of 
        executive agreements to Congress; reports to accompany S. 596. 
        [Washington, U.S. Government Printing Office] 1972. 4 p. (92d 
        Cong., 2d Sess., House. Report no. 92-1301)
      These reports include consideration of the meaning and background 
        of bill S. 596, requiring that international agreements other 
        than treaties be transmitted to the Congress within 60 days 
        after they go into effect. The reports also contain discussion 
        of comments by the Committee of Foreign Affairs regarding the 
        bill.
U.S. Congress. House. Committee on Foreign Affairs. Subcommittee on 
        National Security Policy and Scientific Developments. 
        International executive agreements. Hearing, 92d Cong., 2d 
        Sess., on S. 596, H.R. 14365, and H.R. 14647. June 19, 1972. 
        Washington, U.S. Government Printing Office, 1972. 29 p.
      Testimony of Senator Clifford Case and Carl F. Salans, Deputy 
        Advisor, Department of State.
      These hearings were held to consider ``legislation which would 
        require that the texts of all future executive agreements 
        concluded by the President with foreign states must be 
        transmitted to Congress within 60 days after their execution.'' 
        Discussion is included on the meaning of the legislation, why 
        it is needed, and its security implications.
U.S. Congress. Senate. Committee on Foreign Relations. Foreign 
        Relations Authorization Act, fiscal year 1979; report together 
        with additional views on S. 3076. Washington, U.S. Government 
        Printing Office, 1978. pp. 45-56. (95th Cong., 2d Sess., 
        Senate. Report. No. 95-842)
      The cited section of this report addresses problems in the 
        reporting of international agreements by executive branch 
        agencies to Congress and discusses Title V. of S. 3076, which 
        would amend the Case-Zablocki Act to 1) require transmittal of 
        oral agreements, reduced to writing, 2) require the President 
        to report to Congress annually, explaining why any agreement of 
        the previous year was transmitted late, 3) require that no 
        agreement be concluded or submitted without prior approval of 
        te Secretary of State or the President, 4) place the Secretary 
        of State in the position of determining whether an arrangement 
        constitutes an international agreement within the meaning of 
        the Case Act and 5) authorize the President to promulgate rules 
        and regulations necessary to carry out the Act.
      In the final version of the act approved by the President, the 
        word ``international'' was inserted between oral and 
        agreements, and point 3 was changed to specify that no 
        agreement be concluded or submitted without prior consultation 
        with the President or Secretary of State.
------. Transmittal of executive agreements to Congress. Hearings, 92d 
        Cong., 1st Sess., on S. 596. Oct. 20 and 21, 1971. Washington 
        U.S. Government Printing Office, 1971. 97 p.
      These hearings on the Case Bill, which would require the 
        transmittal of all executive agreements to Congress within 60 
        days of their execution, include statements by Senator Case on 
        the bill, its legislative history, and Senate relations with 
        the executive branch. They also include statements by Professor 
        Ruhl J. Bartlett on the increasing use of executive agreements 
        and on constitutional issues regarding their use. Professor 
        Alexander Bickel considers the need for congressional review of 
        U.S. military deployments abroad, the constitutionality of the 
        Case Bill, and the possibility that Presidents might invoke 
        executive privilege regarding specific agreements. John R. 
        Stevenson, Legal Adviser, Department of State, and Charles I. 
        Bevans, Assistant Legal Adviser for Treaty Affairs, provide 
        State Department perspectives on the Case Bill, describe 
        procedures followed in entering into agreements, review 
        Presidential powers, propose alternatives and amendments to the 
        bill, and discuss problems concerning security, classified 
        information, and intelligence operations.
------. Transmittal of executive agreements to Congress; report to 
        accompany S. 596. Washington, U.S. Government Printing Office, 
        1972. 5 p. (92d Cong., 2d Sess., Senate. Report no. 92-591)
      Provides background on bill S. 596, requiring that international 
        agreements other than treaties be transmitted to the Congress 
        within 60 days after they go into effect, and includes comments 
        by the Committee on Foreign Relations regarding the bill.
U.S. Department of State. Memo of March 12, 1976, from Monroe Leigh, 
        Legal Adviser, Department of State, to all key Department 
        personnel. In its Digest of United States practice in 
        international law, 1976. [Washington, 1976] pp. 263-267.
      Specified the criteria the State Department's Legal Adviser 
        applies in deciding what constitutes an international 
        agreement, for ``purposes of implementing legal requirements 
        with respect to publication of international agreements and 
        transmittal of international agreements to Congress.''
U.S. Department of State. Office of the Secretary. Coordination and 
        reporting of international agreements. Federal register, v. 46, 
        July 13, 1981: 35917-35921.
      The text of Department of State departmental regulations 108.809, 
        22 CFR Part 181, is provided, with summary and supplemental 
        information. ``The regulations outline the criteria applied by 
        the Department of State in deciding what constitutes an 
        international agreement, and provides that determinations of 
        such questions are made by the Legal Adviser of the Department 
        of State, usually acting through the Assistant Legal Adviser 
        for Treaty Affairs. The regulations spell out procedures to be 
        followed in consulting with the Secretary of State or his 
        designee before signing or otherwise concluding an 
        international agreement, and detail the procedures to be 
        followed by the Department of State in transmitting concluded 
        agreements to the Congress.''
U.S. General Accounting Office. Reporting of U.S. international 
        agreements by executive agencies has improved; report to the 
        Congress by the Comptroller General of the United States. 
        Washington, G.A.O., 1978. 53 p.
      ``ID-78-57, Oct. 31, 1978'' ``The Case-Zablocki Act requires the 
        Secretary of State to report international agreements concluded 
        by all executive agencies to Congress within 60 days after they 
        become effective * * *. Federal agencies have become more aware 
        of their Act responsibilities, reporting requirements have been 
        clarified and controls have been improved since GAO's 1976 
        report on this subject.''
------. U.S. agreements with the Republic of Korea, Department of State 
        and Defense; report of the Comptroller General of the United 
        States. Washington, G.A.O., 1976. 25 p.
      ``ID-76-20, Feb. 20, 1976'' ``* * * certain agencies have not 
        been submitting to the State Department or the Congress all 
        agency-level agreements they have concluded. Some agencies have 
        apparently interpreted agreements which are concluded by agency 
        personnel or which are of a subordinate or implementing 
        character to be outside the reporting requirements of the Case 
        Act. Congressional and State Department clarification of the 
        reporting requirements and improved controls over the reporting 
        of agreements are needed.''
                    4. u.s. termination of treaties
Adler, David Gray. The Framers and treaty termination: a matter of 
        symmetry. Arizona State law journal, v. 1981, no. 4, 1981: 891-
        923.
      Article reviews the debates over the treaty-making power in the 
        1787 Constitutional Convention and the state ratifying 
        conventions, concluding that ``the Supreme Court's failure in 
        Goldwater v. Carter to uphold the right of the Senate to a 
        voice in the termination of the [Taiwan-U.S.] Mutual Defense 
        Treaty, is a repudiation of the Framers' concerns, and the 
        crucial compromises that had to be reached in order for the 
        states to agree to confederate.''
Emerson, J. Terry. The legislative role in treaty abrogation. Journal 
        of legislation, v. 5, 1978: 46-80.
      ``It is the premise of this article that Congress as a corporate 
        entity, or at least the Senate, should reaffirm its long-
        standing role in the treaty termination process at least by 
        declaring its understanding of the method which the 
        Constitution requires for the abrogation of treaties and 
        calling upon the Executive for prompt information of each 
        Presidential action purporting to remove our nation from a 
        treaty obligation.''
------. Treaty termination revisited. Woodrow Wilson journal of law, v. 
        4, summer 1982: 1-25.
      ``The United States Supreme Court has indicated it will step 
        aside should the Executive Branch attempt the unilateral 
        dismantlement of the post World War II arrangement of security 
        treaties that has been a protective umbrella over the free 
        world for nearly four decades. Neither the Court, nor the 
        Constitution, is a bar to presidential abrogation of formal 
        treaties without any implied or active participation of the 
        legislative department. Congress must find and use its own 
        resources to thwart such action, if it is disposed to challenge 
        presidential conduct. These are the lessons of Court's decision 
        in Goldwater v. Carter announced on December 13, 1979.''
Goldwater, Barry M. Treaty termination is a shared power. Policy 
        review, no. 8, spring 1979: 115-124.
      Senator Goldwater challenges ``the validity of the President's 
        attempted termination of the treaty without any supporting 
        legislative authority.''
Goldwater v. Carter: symposium. Yale studies in world public order, v. 
        6, fall 1979: 1-235.
      Contents.--Goldwater v. Carter: crisis in American constitutional 
        arrangements for the conduct of international relations, by C. 
        Oliver.--The abuse of history: a refutation of the State 
        Department analysis of alleged instances of independent 
        Presidential treaty termination, by J. Thomas.--Goldwater v. 
        Carter: the constitutional allocation of power in treaty 
        termination, by E. Gaffney, Jr.--The constitutional power to 
        terminate treaties: who, when, and why, by A. Swan.
Guttenborg, David A. Treaty termination and the separation of powers: 
        the constitutional controversy continues in Goldwater v. 
        Carter, 100 S. Ct. 533 (1979) (Mem.) Denver journal of 
        international law and policy, v. 9, summer 1980: 239-260.
      ``The United States Supreme Court recently rejected the 
        contention of a number of Members of Congress that President 
        Carter improperly terminated the Mutual Defense Treaty of 1954 
        with the Republic of China (Taiwan). This Case Note analyzes 
        the history, constitutional interpretations, and legal theories 
        on which the Supreme Court's decision was based and discusses 
        its effect on current and future treaties. The author concludes 
        that because the termination accompanied the derecognition of 
        the Republic of China, its precedential effect is diminished.''
Henkin, Louis. Litigating the President's power to terminate treaties. 
        American journal of international law, v. 73, Oct. 1979: 647-
        654.
      Louis Henkin discusses the obstacles facing Members of Congress 
        who seek to litigate Presidential power in foreign affairs. He 
        examines arguments supporting and opposing the contention that 
        the President has the power to terminate treaties.
      Henkin suggests, ``As a general proposition, there may be 
        serious, if hypothetical, reason for concern that a President 
        might unilaterally pull us out of, say, NATO or SALT * * *. 
        There, as perhaps elsewhere, it is plausible to urge that the 
        President should not act to terminate an important treaty 
        without at least meaningful consultation with Congress, 
        congressional committees, congressional leaders * * *.
      ``A different constitutional issue is whether the Senate can 
        require, as a condition of its consent to a particular treaty, 
        a presidential undertaking to terminate that treaty only in 
        accordance with prescribed procedure.''
Lawson, Karin Lee. The constitutional twilight zone of treaty 
        termination: Goldwater v. Carter. Virginia journal of 
        international law, v. 20, fall 1979: 147-169.
      ``Goldwater v. Carter raised an issue never before litigated in 
        U.S. courts: does the U.S. Constitution, because of its silence 
        with regard to the termination process, implicitly give that 
        power to the President? * * * The Supreme Court's order to 
        vacate the court of appeals' opinion and dismiss the complaint 
        solved the question of termination of the Mutual Defense 
        Treaty, but left unanswered the presidential power issue.''
Martin, Serge G. The President's power to terminate treaties: the 
        unanswered question of Goldwater v. Carter. Journal of 
        international law and economics, v. 14, no. 2, 1980: 301-319.
      ``This note examines the constitutionality of presidential 
        actions effecting the termination of treaties in the absence of 
        any prior congressional consent * * *. Prior to the recent case 
        of Goldwater v. Carter, this issue had never been directly 
        presented to any court.''
Murray, Nancy J. Treaty termination by the President without Senate or 
        congressional approval: the case of the Taiwan treaty. 
        Southwestern law journal, v. 33, June 1979: 729-761.
      ``This comment discusses the nature of treaties, the treaty-
        making process, and the history of treaty-termination 
        practices. Special emphasis is given to issues that arise in 
        Goldwater v. Carter, including who has standing to challenge 
        the President's independent termination of a treaty and, more 
        importantly, whether such a challenge presents a justifiable 
        controversy.''
The Question of Presidential power to terminate treaties. Congressional 
        digest, v. 58, June-July 1979: 161-192.
      Contents.--The question of Presidential power to terminate 
        treaties.--The foreword.--Evolution of the mutual security 
        treaties.--Recent action in the Congress.--The Taiwan Treaty 
        lawsuit: Senator Goldwater.--The Taiwan Treaty lawsuit: 
        President Carter.--Should the Byrd proposal concerning the 
        termination of mutual defense treaties be adopted?
Resolving treaty termination disputes. University of Pennsylvania law 
        review, v. 129, May 1981: 1189-1229.
      ``This comment has addressed the question whether the termination 
        of a treaty requires legislative participation, or, rather, 
        only executive action. Observing that the United States is 
        party to a wide variety of treaties, it suggests that different 
        treaty terminations will implicate different congressional and 
        presidential interests in controlling the termination decision. 
        Depending on the interest implicated, unilateral presidential 
        treaty termination will be permissible in some cases, while in 
        others, legislative participation will be required. A balancing 
        test, looking to the various governmental interests at stake in 
        treaty terminations, was proposed for determining the 
        appropriate manner of making a particular treaty termination 
        decision. The Comment concluded by arguing that, whatever test 
        may be adopted, an established procedure for deciding who is to 
        participate in treaty terminations would be desirable.''
Rubin, Alfred P. Constitutional confusion: treaty denunciation. 
        Fletcher forum, v. 4, winter 1980: 88-93.
      Examines some of Judge Gasch's reasoning ``in the case of Senator 
        Barry Goldwater, et al. v. James Earl Carter, et al., that 
        President Carter's notice of termination of the 1954 Mutual 
        Defense Treaty Between the United States and the Republic of 
        China must receive the approval of two-thirds of the United 
        States Senate or a majority of both houses of Congress for that 
        notice to be effective.''
Scheffer, David J. The law of treaty termination as applied to the 
        United States derecognition of the Republic of China. Harvard 
        international law, v. 19, fall 1978: 931-1009.
      ``The first part of this Comment reviews, in their legal context, 
        the recent events which have culminated in normalization of 
        relations between the United States and the PRC * * *. The 
        second part of this Comment examines the weaknesses of the 
        `lapse' theory in light of the recent events discrediting its 
        relevance * * *. The third part analyzes, in the context of 
        normalization, the more general issue of how treaties should be 
        abrogated by the United States government.''
U.S. Congress. Senate. Committee on Foreign Relations. Termination of 
        treaties: the constitutional allocation of power. Washington, 
        U.S. U.S. Government Printing Office, 1979. 423 p.
      At head of title: 95th Congress, 2d Session. Committee Print.
      This compilation of materials on the termination of treaties 
        includes State Department lists of withdrawals from bilateral 
        and multilateral treaties as well as academic publication, 
        articles from the press, and executive and congressional 
        publications.
------. Treaty termination. Hearings, 96th Cong., 1st Sess., Apr. 9-11, 
        1979, on S. Res. 15, Resolution concerning mutual defense 
        treaties. Washington, U.S. Government Printing Office, 1979. 
        589 p.
      The committee considers Senate Resolution 15: ``Resolved, that it 
        is the sense of the Senate that approval of the United States 
        Senate is required to terminate any mutual defense treaty 
        between the United States and another nation.'' The committee 
        also reviews ``the role of the Senate, in approving treaties--
        specifically, which agreements require Senate approval, how the 
        Senate's advice function is most properly performed, and 
        whether the Senate's internal procedures for consenting to the 
        ratification of treaties should be modernized.''
------. Treaty termination resolution; report together with additional 
        views on S. Res. 15. Washington, U.S. Government Printing 
        Office, 1979. 47 p. (96th Cong., 1st Sess., Senate. Report no. 
        96-119)
      This report includes a summary of Senate action since 1969 
        regarding the treaty power. The committee proposes a substitute 
        resolution as an amendment to the original version of Senate 
        Resolution 15. ``The substitute resolution presents general 
        guidelines for the termination of any treaty to which the 
        United States is a party.
      ``It also sets forth two methods by which the Senate or the 
        Congress as a whole can specify procedures for the termination 
        of treaties on a case-by-case basis: either 1) by including a 
        condition in the resolution of consent to ratification of a 
        particular treaty, or 2) by enacting a joint resolution 
        concerning a particular treaty.''
      In its discussion of the resolution, the committee considers the 
        Administration's position, relevant Supreme Court decisions, 
        and precedents for specifying termination procedures. 
        Additional views of Senator Claiborne Pell and Senator Jesse 
        Helmes, opposing the action taken by the committee, are 
        included.
Watson, Geoffrey R. The death of treaty. Ohio State law journal, v. 55, 
        1994: 781-853.
      ``Article explores the decline and fall of Treaty. Part I of the 
        Article traces the origins and development of treaties. It 
        argues that Treaty reached its political and doctrinal zenith 
        in the nineteenth century * * *. Part II explores the 
        subsequent doctrinal disintegration of Treaty.''
                               D. Guides
                   1. guides to resources on treaties
    This section is designed to assist the reader in locating 
information about treaties and international agreements.

List of treaty collections--Liste de recueils de traites--Lista de 
        colecciones de tratados. United Nations, Office of Legal 
        Affairs, Codification Division. Moorestown, N.J., Symposia 
        Press; Holmes Beach, Fla., Exclusive distribution by W. W. 
        Gaunt, 1981. 174 p. Reprint. Originally published: New York, 
        United Nations, 1956 (United Nations. [Document] ST/LEG/5)
      The list of treaty collections is ``limited in principle, to 
        collections published in and after the last two decades of the 
        18th century.'' The first part identifies general collections, 
        including indices, chronologies, bibliographies, and handbooks. 
        The second lists collections by subject; the third, by country. 
        Titles are given in their original language. Accompanying 
        comments are in English, except for collections which are 
        predominantly in French; then the commentary is in French.
Kavass, Igor I. Hood, Howard A. Computerized legal databases: an 
        international survey. International journal of legal 
        information, v. 11, no. 3 & 4, 1983: 115-129.
Kramer, Mary. How to find U.S. treaties in the Library of Congress. 
        Washington, Library of Congress, General Reading Rooms 
        Division, 1981. 11 p.
      ``This brief guide to U.S. treaty research consists of a selected 
        and annotated bibliography of important treaty collections and 
        indexes.'' It also includes a glossary.
Parry, Clive. Where to look for your treaties. International journal of 
        law libraries, v. 8, 1980: 8-18.
Pilschke, Elmer. Treaties and agreements. In his U.S. foreign 
        relations: a guide to information sources. Detroit, Gale 
        Research,  1980. pp. 571-587. (American government 
        and history information guide series, v. 6)
      ``This section contains the principal documents and compilations 
        relevant to the treaties and agreements published by Congress 
        and the Department of State, general multinational treaty 
        series (including those of the League of Nations, and the 
        United Nations) together with related indexes of research 
        significance, and selected unofficial compilations of and 
        commentaries on treaties and agreements, including several 
        functional treaty lists.''
Renoux, Yvette. Glossary of international treaties. In French, English, 
        Spanish, Italian, Dutch, German and Russian. Compiled and 
        arranged with the collaboration of Janine Yates. Amsterdam, New 
        York, Elsevier Publishing Co., 1970. 212 p. (Glossaria 
        interprtum, no. 14)
Research sources on international law: bibliographic notes. Journal of 
        international law and economics, v. 13, no. 3, 1979: 717-746. 
        Part I--dictionaries and encyclopedias.
      ``This column presents nearly one hundred current and historical 
        dictionaries and encyclopedias to which the practitioner or 
        student can turn for quick reference to the definitions, 
        origins, and usage of international legal terms and concepts.'' 
        Part II--Treaties. ``The portion of this column devoted to 
        researching treaties is organized as follows.--Sources of 
        information on treaty research.--Indexes to treaties and 
        collections.--Non-collection treaty sources.--Collections of 
        treaties.--Status of treaties.--United States treaty system.''
Sprudzs, Adolf. Treaty sources in legal and political research; tools, 
        techniques, and problems, the conventional and the new. Tucson, 
        University of Arizona Press [1971] 63 p. (The Institute of 
        Government Research. International studies, no. 3)
      Sprudzs surveys the practice of selected states and the United 
        Nations in making treaty information a matter of public record. 
        He reviews guides and indexes to treaty collections, charts 
        indicating the status of specific treaties, and other sources. 
        Sprudzs also discusses computerized data bases, including the 
        United Nations Treaty Series Project, and the U.S. Department 
        of Defense International Agreements Project, part of the U.S. 
        Air Force Project FLITE.
Zwirn, Jerrold. United States treaties. In his Congressional 
        publications: a research guide to legislation, budgets, and 
        treaties. Littleton, CO, Libraries Unlimited, 1983. pp. 150-
        165.
      ``This chapter presents a detailed description of the 
        treatymaking process as reflected in the roles of the President 
        and the Senate. Though treaties are a form of domestic law, 
        their international aspect affords greater latitude for 
        official discretion than does the legislative process * * *. 
        The absence of prescribed time limits and unsettled standing of 
        governmental precedents significantly affect treaty 
        publications. The impact of these factors is noted at various 
        points throughout the discussion and is more thoroughly treated 
        in reference to sources that can be consulted to determine the 
        status of treaties.''
    2. compilations of treaties, and indexes international in scope
    Since the emphasis of this bibliography is on U.S. treaties and 
treatymaking, only a few selected treaty compilations and indices which 
are international in scope are listed in this section. For discussions 
on researching foreign treaties, please see the guides listed in 
Section A, above, especially ``Research Sources on International Law: 
Bibliographic Notes'' in the Journal of International Law and 
Economics, v. 13, no. 3, 1979, pp. 717-746.
    International Legal Materials, published bimonthly by the American 
Society of International Law, provides current information on treaties 
and includes the texts of treaties and other international documents 
before they may be available in compilations.
    Complex current issues may require the expertise of international 
legal specialists, such as those in the Office of the Assistant Legal 
Adviser for Treaty Affairs, U.S. Department of State, or the 
international legal specialists on the staff of the Library of Congress 
Law Library.
    In this section of the bibliography, independent works are listed 
alphabetically by title or by the corporate body issuing them, if the 
name of the corporate body reflects the scope of the treaty activity 
covered. The citations for indices or other supplemental works 
immediately follow, preceded by a series of dashes to indicate their 
relationship with the independent works under which they are listed. 
For example, the Index Guide to Treaties, prepared by Irwin, 
immediately follows the Consolidated Treaty Series, on which it is 
based. The development of online information retrieval systems is 
dynamic, so a librarian or information broker should be consulted for 
current information on database access to specific treaty issues.

The Consolidated treaty series. Edited and annotated by Clive Parry. 
        Dobbs Ferry, N.Y., Oceana Publications, 1981, v. 1-231.
      ``The present series * * * is proposed * * * to make a beginning 
        with the year 1648 * * * and, for the period between that year 
        and the date of commencement of the League series 
        (approximately 1918-20), to reproduce such prints of treaties 
        in their original languages as can be found in whatsoever 
        collection along with such translations into English or French 
        as again * * * can be found.'' The treaties are arranged 
        chronologically; the title of each volume specifies the year it 
        covers. Each entry indicates parties to the treaty, when the 
        treaty came into force, whether it is still in effect, and if 
        applicable, how it has been superseded or terminated.
------. Index-guide to treaties: based on the Consolidated treaty 
        series, edited and annotated by Clive Parry, LL.D., and all 
        other series therein utilised. Dobbs Ferry, N.Y., Oceana 
        Publications, 1979+
      Contents: [pt. 1] v. 1. Irwin, P. General chronological list 
        1648-1809 i.e., 1648-1808]--v. 2. Hill, Brian H.W. General 
        chronological list 1648-1809 supplement, 1809-1851.--v. 3. 
        Hill, Brian H.W. General chronological list, 1852-1885.--v. 4. 
        Hill, Brian H.W. General chronological list, 1886-1903.--v. 5. 
        Hill, Brian H.W. General chronological list, 1904-1919.--[pt. 
        2] Meyer, Michael A. Special chronological list, 1648-1920 (2 
        v.).--[pt. 3] Hill, Brian H.W. Party index. v. 1, Afghanistan-
        Finland--v. 2, France-German states.--v. 3, Great Britain-
        Italy.--v. 4, Japan-South Rhodesia.--v. 5, Spain-Zanzibar.
Index to multilateral treaties; a chronological list of multi-party 
        international agreements from the sixteenth century through 
        1963, with citations to their text. Edited by Vaclav Mostecky 
        and Francis R. Doyle. Cambridge, Mass., distributed by Oceana 
        Publications, for the Harvard University Law School Library, 
        1965, and supplements, 1966-1968.
      This work lists multilateral international agreements from 1596 
        to 1963, indicating date and, where important, place of 
        signature; language of treaty; and signatories, if there were 
        five or fewer. Citations are provided to official and 
        unofficial sources for the complete texts of treaties. Treaties 
        are arranged chronologically with indices by subject and 
        region.
International organization and integration: annotated basic documents 
        and descriptive directory of international organizations and 
        arrangements. 2d, completely rev. ed. The Hague, Boston, 
        Martinus Nijhoff Publishers; Hingam, Mass., Kluwer Boston, 
        distributors for the U.S. and Canada, 1981+ v. 1A, 2A.
      Contents (Incomplete).--v. 1A. The United Nations organization--
        v. 2 A. European Communities.
Key treaties for the great powers, 1814-1914. Selected and edited by 
        Michael Hurst. New York, St. Martin's Press [1972] 2 v. (948 
        p.)
      Contents.--v. 1. 1814-1870.--v. 2. 1871-1914.
The Major international treaties, 1914-1973; a history and guide with 
        texts. [By] J.A.S. Grenville. New York, Stein and Day [1974] 
        575 p.
      Provides a history and analysis of major treaties and agreements, 
        and includes the texts of the most important.
Treaties and alliances of the world. Compiled and written by Henry W. 
        Degenhardt; general editor, Alan J. Day. 3d ed. Harlow, Essex, 
        Longman; Detroit, Distributed by Gale Research, 1981. 409 p.
      Provides brief descriptions of treaties and international 
        agreements, indicating significant dates, signatories, and 
        major provisions. Also describes organizations established by 
        treaties or international agreements. Length and depth of 
        coverage varies with the topic.
      Contents.--Early international agreements and their later 
        expansion.--World War II: treaties and agreements on 
        territorial changes, frontiers and other matters arising out of 
        the War.--the United Nations.--Nuclear and conventional 
        disarmament.--Agreements on scientific, space, and 
        environmental cooperation.--International economic co-
        operation.--Commodity and raw material producers' organizations 
        and agreements.--West European groupings, treaties and 
        agreements.--Organization for Economic Co-operation and 
        Development (OECD).--North Atlantic Treaty Organization 
        (NATO).--The Communist World.--East-West treaties of 1970-
        1980.--The Commonwealth.--The French Community (``Communaute'') 
        and other Francophone co-operation.--The Americas.--The Middle 
        East and Islamic states.--Africa.--South-East Asia and the 
        Pacific Area.--The ``Third World'': attempts at achieving 
        cohesion.
United Nations. Office of Legal Affairs. United Nations treaty series: 
        treaties and international agreements registered or filed and 
        recorded with the Secretariat of the United Nations. New York, 
        United Nations, 1946+
      Treaties appear chronologically by date of registration with the 
        Secretariat. Each volume includes a list of notifications of 
        ratifications, accessions, successions, and extensions of 
        published treaties.
      Cumulative indices were originally published for each 100 
        volumes; they are now published for each fifty. Chronological 
        indices list treaties in order of their date of signature. 
        Other indices list them by country and by subject, using broad 
        subject headings.
------. Cumulative list and index of treaties and international 
        agreements registered or filed and recorded with the 
        Secretariat of the United Nations, December 1969-December 1974. 
        By Joseph T. Vambery and Rose V. Vambery. Dobbs Ferry, N.Y., 
        Oceana Publications, 1977. 2 v.
      Provides and index to treaties and international agreements 
        published in the United Nations Treaty Series from December 
        1969 to 1975.
------. Multilateral treaties in respect of which the Secretary-General 
        performs depositary functions; list of signatures, 
        ratifications, accessions, etc. as of 31 December 1970. New 
        York, United Nations, 1971. 439 p. (United Nations. Document 
        ST/LEG/SER.D/4)
      This annual publication list conventions as well as treaties 
        chronologically by date of signature. Information on each 
        treaty includes date of entry into force, list of signatories 
        with date of receipt by the United Nations of their instruments 
        of accession, citation to the text in the United Nations Treaty 
        Series, and the text of accompanying declarations or 
        reservations.
------. Statement of treaties and international agreements registered 
        or filed and recorded with the Secretariat of the United 
        Nations. New York, United Nations, 1974+ (United Nations. 
        [Document] ST/LEG/ser.A.)
      This monthly publication supplements the annual volumes of the 
        Multilateral Treaties List and contains information on treaty 
        matters. Both this publication and the list are dependent on 
        signatory states for information and thus may be incomplete. 
        Publication is running at least 1 year behind.
------. Status of multilateral conventions of which the Secretary-
        General acts as depository. Revised edition. New York, United 
        Nations, 1959+ 1 v. (looseleaf) (United Nations. [Document] ST/
        LEG/3, rev. 1)
World treaty index. By Peter H. Rohn. 2d ed. Santa Barbara, Calif., 
        ABC-Clio Information Services,  1983- 
        1984. 5 v.
      This index, generated from a data base on machine-readable tape, 
        provides access to the League of Nations Treaty Series, the 
        United Nations Treaty Series, and other treaties from more than 
        40 national treaty collections. For each treaty, in includes 
        date of signature, list of parties, and citations to sources 
        for the full text.
      Contents.--v. 1. Reference volume.--v. 2. Main entry section, pt 
        1, 1900-1959.--v. 3. Main entry section, pt. 2, 1960-1980.--v. 
        4. Party index.--v. 5. Keyword index.
------. Treaty profiles. Santa Barbara, Calif., Clio Books,  
        1976. 256 p.
      This quantitative analysis of the bilateral treatymaking behavior 
        of countries and international organizations, indicating 
        leading treaty partners, registration frequency, and other 
        information, is derived from a subset of the database used to 
        generate the World Treaty Indexes, listed above.
             3. u.s. treaties and the treatymaking process
    This section is divided into four subsections: a) Sources for 
information on treaties throughout the treatymaking process; b) 
Official treaty series; c) Indices and retrospective compilations; and 
d) Sources primarily concerned with the status of treaties (although 
they may supply additional information and although other sources may 
include information on treaty status, as indicated in annotations.) 
Table A1-1 is provided to facilitate identification of sources 
providing information and various stages of the treatymaking process. 
Sources listed in the table are described in greater detail in the 
relevant subsections. Online database systems which can be used to 
access sources are indicated in the ``notes'' column in the table and 
in annotations in the text. Development of online systems is dynamic, 
so a librarian or information broker should be consulted for complete, 
current information on database access for specific treaty issues.
    Although the purpose of this section is to identify prominent 
resources on U.S. treaties through the current U.S. treatymaking 
process, it is by no means definitive. Please consult the guides to 
resources on treaties in section A, above, for discussions of the 
complexities of locating information on U.S. treaties and treatymaking. 
A number of the sources complement each other. For example, in 
Congressional Publications: a Research Guide to Legislation, Budgets 
and Treaties, Jerrold Zwirn discusses U.S. treaty publications by 
reviewing how they are generated during the current treatymaking 
process. In U.S. Foreign Relations: A Guide to Information Sources, 
Elmer Plishke organized the documents and compilations by issuing 
agency. He includes information on sources useful for historical 
research on U.S. treatymaking. Mary Kramer provides guidance on doing 
research in the Library of Congress on current and historical U.S. 
treaties in How to find U.S. Treaties in the Library of Congress.
    For ongoing, current information on treaty developments, see the 
Department of State Dispatch and the American Journal of International 
Law, published by the American Society of International Law. Specific, 
complex questions may require the expertise of legal specialists, such 
as those in the U.S. State Department Office of the Assistant Legal 
Adviser for Treaty Affairs, or legal specialists in the Library of 
Congress Law Library or Congressional Research Service.
a. Sources for treaty information throughout the treatymaking process
            CIS/index
CIS/index to publications of the United States Congress. Washington, 
        Congressional Information Service, 1970+
      CIS indexes and abstracts congressional publications other than 
        the Congressional Record. Issues appear monthly, with 
        quarterly, annual and multiyear cumulations. Abstracts are 
        arranged by committee and then by form of publication. The 
        section on the Senate Foreign Relations Committee includes 
        subsections for Senate Executive Reports and Senate Treaty 
        Documents. Subject indexes provide entries under the term 
        ``Treaties and conventions,'' as well as under topical 
        headings. The Legislative Calendar for the Senate Foreign 
        Relations Committee can be located under the index term 
        ``Congressional Committee Calendar.'' Abstracts provide 
        bibliographic information, which can be used to locate the 
        publication in a library or to obtain it from the issuing 
        source. Alternatively, the index may be used in conjunction 
        with the CIS microfiche collection, which includes the texts of 
        most items indexed. CIS/index is available online through 
        DIALOG.
            Congressional Index
Congressional index. Chicago, Commerce Clearing House, 1937+
      This weekly loose-leaf service provides information on the 
        contents and status of bills and resolutions pending in 
        Congress. The ``Treaty Section'' is especially useful for 
        determining recent developments regarding the status of 
        treaties pending approval. Treaties not yet approved are 
        arranged chronologically by the session of Congress in which 
        they were introduced.

    Table A1-1.--Publications Providing Information on U.S. Treaties
                 Throughout the Treatymaking Process \1\
------------------------------------------------------------------------
     Stage/Form/Information             Sources              Notes
------------------------------------------------------------------------
Initiation
    Statements by President or    Weekly Compilation  Available on NEXIS
     Secretary of State.           of Presidential
                                   Documents.
                                  State Department
                                   Dispatch.
                                  Foreign Policy      Privately
                                   Bulletin.           published
------------------------------------------------------------------------
Negotiation
    Course of proceedings.......  Weekly Compilation  Available on NEXIS
                                   of Presidential
                                   Documents.
                                  State Department
                                   Dispatch.
                                  Foreign Policy
                                   Bulletin.
    First printing of treaty       Department of
     with outline of history.      State Dispatch.
                                   Department of
                                   State Press
                                   Releases.
------------------------------------------------------------------------
Transmittal to Senate
    Notification of receipt by     Congressional       Available online
     Senate, President's message.  Record.             in many places,
                                                       including DIALOG,
                                                       Legislate, NEXIS,
                                                       WESTLAW, and CQ
     Treaty text and transmittal   Executive Journal  CIS/index; GPO
     documentation.                of the Senate.      Monthly Catalog
                                  Senate Treaty
                                   Document, 98th
                                   Congress on;
                                   formerly, Senate
                                   Executive
                                   Document.
     Citation for Senate           Executive Journal   Available on
     Executive or Treaty           of the Senate.      NEXIS
     Document.                    Weekly Compilation
                                   of Presidential
                                   Documents.
                                   CIS/Index........   Available on
                                                       DIALOG
------------------------------------------------------------------------
Foreign Relations Committee
 Action
    Legislative history.........  Senate Foreign      Indexed by CIS/
                                   Relations           index
                                   Committee
                                   calendar.
                                  Senate Executive    Indexed by CIS/
                                   Reports.            index
                                   Legislative        Issued at end of
                                   Activity Reports.   each Congress
     Citation for executive       Daily Digest, in     DIALOG
     reports.                      Congressional
                                   Record.
                                  Executive Journal
                                   of the Senate.
                                  CIS/Index.........
     Citation to printed          Monthly Catalog...   DIALOG
     hearings and committee       CIS/index.........
     reports.
------------------------------------------------------------------------
Senate action
    Amendments, reservations,      Congressional      DIALOG, NEXIS
     understandings, resolutions   Record.
     of ratification.             Executive Journal
                                   of the Senate.
    List of treaties pending....  Congressional
                                   Index.
                                  Executive Journal
                                   of the Senate.
     Legislative history........   Senate Foreign      CIS/index
                                   Relations
                                   Committee
                                   calendar.
------------------------------------------------------------------------
 Withdrawal
    Notice regarding............  Congressional        Index: DIALOG
                                   Record and its
                                   Daily Digest.
                                  Executive Journal
                                   of the Senate.
                                   Weekly              Available on
                                   Compilation of      NEXIS
                                   Presidential
                                   Documents.
------------------------------------------------------------------------
Renegotiation
    Notice regarding............  Weekly Compilation  Available on NEXIS
                                   of Presidential
                                   Documents.
                                  U.S. Department of
                                   State Press
                                   Releases.
------------------------------------------------------------------------
 Ratification                      Department of
                                   State Dispatch.
                                  Foreign Policy
                                   Bulletin.
                                   Weekly             Available on NEXIS
                                   Compilation of
                                   Presidential
                                   Documents.
------------------------------------------------------------------------
Exchange or deposit of            Department of
 ratification                      State Dispatch.
                                   Foreign Policy
                                   Bulletin.
------------------------------------------------------------------------
Proclamation by President
    Notice regarding............   Department of      May include Senate
                                   State Bulletin.     conditions and
                                                       qualifications
     Proclamation text; treaty    Weekly Compilation  May include Senate
     text, related documents,      of Presidential     conditions and
     and citation to UST.          Documents.          qualifications
                                   Statutes at Large  May include Senate
                                                       conditions and
                                                       qualifications
------------------------------------------------------------------------
 Modification, termination,        Shepherd's United  Online on LEXIS
 renewal                           States Citations--  and WESTLAW
                                   Statutes Edition.
------------------------------------------------------------------------
Implementation
    Executive branch action.....   Department of
                                   State Bulletin.
                                  Weekly Compilation   Available on
                                   of Presidential     NEXIS FEDREG;
                                   Documents.          text on NEXIS
                                   Federal Register.  Available on
                                                       DIALOG, WESTLAW,
                                                       NEXIS, Legislate
     Legislative activity.......   Senate Foreign      In Serial Set
                                   Relations           indexed by
                                   Committee           Monthly Catalog.
                                   Legislative         CIS/index
                                   Activities Report.
------------------------------------------------------------------------
Entry into force
    Publication of treaty, once    Treaties and       Unbound pamphlet;
     in force.                     Other               listed in Monthly
                                   International       Catalog; Current
                                   Acts Series         Treaty Index
                                   (TIAS).
     Before 1946................   Treaty Series....  Included
                                                       international
                                                       agreements until
                                                       1929
                                   Executive
                                   Agreement Series
                                   (1929-1946).
------------------------------------------------------------------------
 Annual cumulations
    1950-1951...................  United States       Indexed by UST
                                   Treaties and        cumulative index
                                   Other
                                   International
                                   Agreements (UST).
                                  Statutes at Large.
------------------------------------------------------------------------
Retrospective cumulations and
 indexes
    1776-1949...................  United States        Based on Bevans,
                                   Treaties and        Malloy, Miller,
                                   Other               Statutes at
                                   International       Large, and other
                                   Agreements          sources
                                   Cumulative Index.
                                   Treaties and        13 v.
                                   Other               Multilateral
                                   International       listed
                                   Agreements          chronologically;
                                   between the         bilateral, by
                                   United States of    country
                                   America, 1776-
                                   1949 (Bevans).
    1776-1937...................  Treaties,           v. 1-2 1776-1909
                                   Conventions,       v. 3 1920-1923
                                   International      v. 4 1923-1937
                                   Acts, Protocols,
                                   and Agreements
                                   between the
                                   United States and
                                   Other Powers,
                                   1920-1938
                                   (Malloy).
    1776-1863...................   Treaties and       Chronological
                                   Other
                                   International
                                   Acts of the
                                   United States of
                                   America (Miller).
------------------------------------------------------------------------
Status
    Treaties in force...........  Treaties in force
                                   1956.
                                  Guide to U.S.
                                   Treaties in
                                   Force, 1982-.
    Unperfected.................  Unperfected         v. 1 covers 1776-
                                   Treaties of the     1855; 5 volumes
                                   United States of    anticipated
                                   America.
------------------------------------------------------------------------


            Congressional Record
U.S. Congress. Congressional record: proceedings and debates of the 
        Congress. Washington, U.S. Government Printing Office. 1873+ 
        Issued in daily, biweekly (green bound), and permanent (red 
        bound) editions.
      The text of the daily edition is revised and rearranged in the 
        permanent edition. A ``Daily Digest'' section has been included 
        since 1947.
      Indexes to the Congressional Record are issued biweekly and for 
        each session. Discussions and actions regarding treaties are 
        listed under the subject heading ``treaties,'' and may be 
        listed under the subjects of specific treaties, as well.
      The Congressional Record was preceded by the Debates and 
        Proceedings in the Congress of the United States, 1st-18th 
        Cong., 1st Sess.; the Register of Debates in Congress, 18th 
        Cong., 2d Sess.-25th Cong., 1st Sess.; and the Congressional 
        Globe, 23d-42d Congress.
            Executive Journal of the Senate
U.S. Congress. Senate. Executive journal of the Senate. Journal of the 
        Executive proceedings of the Senate of the United States. 
        Washington, U.S. Government Printing Office, 1828+
      This publication provides accounts of executive sessions of the 
        Senate, including actions on treaties, and contains the 
        resolutions of ratification. When executive sessions are open, 
        proceedings and debates appear in the Congressional Record.
            Senate executive reports
    A report by the Senate Committee on Foreign Relations on each 
treaty is issued as a Senate executive report. Each report is assigned 
a numeric designation. The reports are indexed in CIS/index and the 
Monthly Catalog. Both CIS and the Monthly Catalog are available online 
through DIALOG.
            Senate Foreign Relations Committee calendar
U.S. Congress. Senate. Committee on Foreign Relations. Legislative 
        calendar. [Washington, D.C.] U.S. Government Printing Office.
      Provides information on Senate action regarding treaties; can be 
        used to trace the legislative history of treaties. Indexed by 
        CRS/index, which is available online through DIALOG.
            Senate treaty documents
    A Senate treaty document provides the text of the treaty as 
transmitted to the Senate from the executive branch, with letters of 
transmittal from the President and Secretary of State and accompanying 
background documentation. Beginning with the 97th Congress, treaties 
have been issued in the Treaty Document Series. Each treaty is 
identified by the number of the Congress and an acquisition number, 
based on the number of treaties previously transmitted during the 
Congress. For example, Treaty Document 98-4 would be the fourth treaty 
transmitted to the 98th Congress. Prior to the 97th Congress, treaties 
were issued in the Senate Executive Documents Series. Each document was 
given an alphabetical designation and was cited by that letter and by 
the number of the Congress and the session in which it was transmitted 
to the Senate. Most Senate treaty and executive documents are 
identified in the Monthly Catalog and CIS/index (both of which are 
available via the U.S. Government Printing Office Web site: http://
orders.access.gpo.gov/su--docs/sale/index.html).
            Department of State Dispatch
U.S. Department of State. Department of State dispatch. [Washington] 
        Office of Communication, Bureau of Public Affairs; for sale by 
        the Superintendent of Documents, U.S. Government Printing 
        Office, 1990+
      This weekly journal provides a compilation of major speeches, 
        congressional testimony, policy statements, fact sheets and 
        other foreign policy information. A periodic list of treaty 
        actions is included. Dispatch began publication in January 
        1990.
      Dispatch is indexed in the Index to U.S. Government Periodicals 
        and is part of the NEXIS service.
            Department of State Bulletin
U.S. Department of State. Department of State bulletin. [Washington] 
        Office of Public Communication, Bureau of Public Affairs; for 
        sale by the Superintendent of Documents, U.S. Government 
        Printing Office, 1939-1989.
      This, ``the official monthly record of United states foreign 
        policy,'' contained a section on treaties which provided 
        information on the status of treaties, including notification 
        of U.S. and foreign ratification of treaties to which the 
        United States is a party. Recent press releases, which may 
        contain the texts of treaties or information on executive 
        branch action at various stages of the treatymaking process, 
        were also listed in the Department of State Bulletin.
      This publication was issued weekly through December 27, 1977, and 
        monthly from January 1978, until it ceased publication in 
        December 1989.
      An index was issued periodically, and the Department of State 
        Bulletin was also indexed by the Index to U.S. Government 
        Periodicals, and more selectively by Public Affairs Information 
        Service, and the Readers' Guide to Periodical Literature.
            Foreign Policy Bulletin
    The Foreign Policy Bulletin began publication in July 1990. It is a 
privately published journal, edited and published by Paul E. Auerswald, 
former editor of the State Department Bulletin. The Foreign Policy 
Bulletin maintains a format similar to that of the now defunct State 
Department Bulletin. Each issue includes a section on treaties. 
Publication information may be obtained from the Foreign Policy 
Bulletin, 4802 Butterworth Place, N.W., Washington, D.C. 20016.
            Department of State press releases
    Department of State press releases may contain information on 
executive branch action regarding treaties during the treatymaking 
process. The text of a treaty may appear for the first time in a 
Department of State press release, usually on the date of signing. 
Press releases were listed in the Department of State bulletin.
            Federal Register
Federal register. [Washington, Office of the Federal Register, National 
        Archives and Records Service, General Services Administration; 
        Superintendent of Documents, U.S. Government Printing Office, 
        distributor] 1936+
      The Federal Register may include information on executive branch 
        action regarding the implementation of treaties. It is issued 
        daily, except Saturday, Sunday, and official Federal holidays.
            Monthly Catalog
Monthly catalog of United States Government publications. Washington, 
        U.S. Government Printing Office, 1895+
      Senate executive documents and reports are listed under Senate; 
        new treaties are listed by their number in the Treaties and 
        Other International Acts Series under the State Department. The 
        Monthly Catalog is available via the U.S. Government Printing 
        Office Web site: http://orders.access.gpo.gov/su--docs/sale/
        index.html.
            Shepard's United States Citations--Statutes Edition
Shepard's United States citations: statutes. 6th edition. Colorado 
        Springs, Shepard's Citations, 1968+
      ``A compilation of citations to United States Constitution, 
        United States statutes at large, United States treaties and 
        other international agreements, * * * [and other sources]. The 
        citations appear in: United States Supreme Court reports; 
        Supreme court reporter; Federal reporter; Federal supplement; * 
        * * United States statutes at large; United States treaties and 
        other international agreements'' and other sources.
      Includes information on modifications of treaties by legislation 
        or changes in the treaties. Treaties through 1949 are listed by 
        date of signing. Since 1950, a special section has been 
        included which lists treaties by their citations in the 
        Treaties and Other International Acts Series.
      This service is kept up to date by periodically issued unbound 
        cumulative supplements which are superseded from time to time 
        by bound cumulative supplements. Since 1979, the supplements 
        have been published by Shepard's, Inc. of Colorado Springs.
            Statutes at Large
United States. Laws, statutes, etc. United States statutes at large, 
        containing the laws and concurrent resolutions Washington, 
        D.C., U.S. Government Printing Office, 1937+
      Contains the texts of public and private laws, constitutional 
        amendments, concurrent resolutions, and proclamations, 
        including Presidential proclamations regarding treaties.
      Through 1951, a portion of part 2 or part 3 of the Statutes at 
        Large included separate lists of treaties and international 
        agreements with their texts. Volume 64, part 3, contains a 
        cumulative list of all treaties and international agreements 
        contained in volumes 1-64, arranged alphabetically by country 
        and then by topic. Since 1951, the texts of treaties and 
        international agreements have been published separately by the 
        State Department in the United States Treaties and Other 
        International Acts Series, listed below in the section on 
        Official Treaty Sources.
            Weekly Compilation of Presidential Documents
Weekly compilation of Presidential documents. Washington, Office of the 
        Federal Register, National Archives and Records Service, 
        General Services Administration; Superintendent of Documents, 
        U.S. Government Printing Office, 1965+
      Issued weekly, with quarterly, semiannual, and annual indexes. 
        Contains Presidential materials released by the White House, 
        including statements, proclamations, and executive orders. 
        Available online through NEXIS.
b. Official treaty series
            TIAS
U.S. Department of State. Treaties and other international acts series 
        (TIAS). Washington, for sale by the Superintendent of 
        Documents, U.S. Government Printing Office, 1946+
      This series provides dissemination of the official versions of 
        new treaties, although there may be a considerable time lag 
        between the date a treaty enters into force and the date it is 
        published in the TIAS. Each treaty or agreement is published in 
        pamphlet form in the official languages of the original 
        instrument. Dates of signature, ratification, proclamation, and 
        implementation are also included.
      TIAS continues the Treaty Series and the Executive Agreement 
        Series. Numbering begins with 1501, since the numbering for the 
        Treaty Series (994) and the Executive Agreement Series (506) 
        totaled 1500.
------. Treaty series (TS). Washington, D.C., U.S. Government Printing 
        Office, [18--]-1946.
      Included separately published pamphlets containing the official 
        texts of U.S. treaties and other international agreements until 
        1929; thereafter, included only treaties. Numbering began in 
        1908, with number 489. For earlier periods, up to number 376, 
        the arrangement is alphabetical by country, then chronological. 
        Multilateral agreements follow number 376. From number 390 on, 
        the sequence is chronological.
------. Executive agreement series (EAS). Washington, U.S. Government 
        Printing Office, 1929-1946.
      Pamphlet series for the official texts of U.S. international 
        agreements from 1929 to 1946. In 1946, treaties and executive 
        agreements were again combined in the Treaties and Other 
        International Acts series.
            UST
U.S. Treaties, etc. United States treaties and other international 
        agreements. Washington, U.S. Dept of State, 1950+
      Since 1950, this annual compilation of the Treaties and Other 
        International Acts Series (TIAS), cited above, has been the 
        official publication for treaties and other international 
        agreements to which the United States is a party. Previously, 
        the texts of treaties were included in the United States 
        Statutes at Large. Treaties and international agreements are 
        arranged in the order in which they were published in TIAS. 
        Entries include the full text of the treaty or agreement in 
        each official language and a chronology. Each volume contains 
        indexes by subject and country, and a four volume cumulative 
        index has been issued, covering the years 1950-1970 (volumes 1-
        21).
c. Indexes and retrospective compilations
    Entries in this section are chronological by the times period 
covered, with an index to current treaties listed first. For coverage 
of treaties from 1776 to 1949, the cumulative index is listed first, 
followed by the works on which it is based.
            Current
Current treaty index. Compiled by Igor I. Kavass and Adolf Sprudzs. 
        Buffalo, N.Y., W.S. Hein, 1982+
      Provides a cumulative index to the United Stages slip treaties 
        and agreements, published in the Treaties and Other 
        International Acts Series.
      ``The information on current treaties and agreements is arranged 
        numerically, chronologically, by country, and by subject * * *. 
        The information in the Current Treaty Index will of course 
        eventually be incorporated in the UST Cumulative Indexing 
        Service as the treaties and agreements are included in the 
        bound UST volumes.'' A new edition of the Current Treaty Index 
        will then be issued, listing new treaties and agreements in 
        slip form. ``The editorial intention is to have Current Treaty 
        Index appear annually'' or more frequently, if circumstances 
        permit.
      ``The Current Treaty Index has many uses. Not only a quick 
        reference for treaties and agreements entered into by the 
        United States * * * during recent years, it presents also an 
        excellent birdseye view of recent commitments made by the 
        United States in different areas of international economics and 
        foreign relations (using the subject index) * * *. Similarly, 
        the chronological index [indicates] the cyclical pattern of 
        international agreements in different subject areas. The close 
        relationship between the United States and other countries may 
        best be seen through the country index.''
            1950+
UST cumulative index, 1950-1970: cumulative index to United States 
        treaties and other international agreements, 1950-1970: 1 UST-
        21UST, TIAS nos. 2010-7034. Compiled by Igor I. Kavass and 
        Adolf Sprudzs. Buffalo, N.Y., W.S. Hein, 1973. 4 v.
      Contents.--v. 1. UST list of documents in numerical order of TIAS 
        numbers.--v. 2. UST chronological index, 1950-1970.--v. 3. UST 
        country index, 1950-1970.--v. 4. UST subject index, 1950-1970.
      This index is kept up to date by annual looseleaf volumes, 
        cumulated and republished every 5 years.
            1776-1949
United States treaties and other international agreements cumulative 
        index, 1776-1949, as published in Statutes at Large, Malloy, 
        Miller, Bevans, and other relevant sources. By Igor I. Kavass 
        and Mark A. Michael. Buffalo, N.Y., W.S. Hein, 1975. 4 v.
      Volume 1 lists in numerical order the treaties and agreements 
        published in the Treaty Series, the Executive Agreement Series, 
        and the Treaties and Other International Acts Series. Volumes 
        2, 3, and 4 provide chronological, country, and subject 
        indexes, respectively.
            1776-1949 (Bevans)
U.S. Treaties, etc. Treaties and other international agreements of the 
        United States of America, 1776-1949. Compiled under the 
        direction of Charles I. Bevans. [Washington, Department of 
        State, for sale by the Superintendent of Documents, U.S. 
        Government Printing Office, 1968-1976] 13 v. (Department of 
        State publications 8407, 8441, 8484, 8521, 8543, 8549, 8566, 
        8590, 8615, 8642, 8728, 8761, 8830)
      The texts of treaties are provided in English only, with some 
        commentary. Volumes 1-4 contain multilateral treaties arranged 
        chronologically; volumes 5-12 contain bilateral treaties, 
        arranged by country. volume 13 is the index.
      Contents.--v. 1. Multilateral, 1776-1917.--v. 2. Multilateral, 
        1918-1930.--v. 3. Multilateral, 1931-1945.--v. 4. Multilateral, 
        1946-1949.--v. 5 Afghanistan--Burma.--v. 6. Canada--
        Czechoslovakia.--v. 7. Denmark--France.--v. 8. Germany--Iran.--
        v. 9. Iraq--Muscat.--v. 10. Nepal--Peru.--v. 11. Philippines--
        United Arab Republic.--v. 12. United Kingdom--Zanzibar.--v. 13. 
        General index. This work, cited as Bevans, superseded the works 
        by Malloy and Miller, which are listed below.
            1776-1931 (Malloy)
U.S. Treaties, etc. Treaties, conventions, international acts, 
        protocols, and agreements between the United States of America 
        and other powers. Washington, U.S. Government Printing Office, 
        1910-1938. 4 v.
      Texts of the treaties and agreements are provided in English, 
        with annotations and index. Volumes 1 and 2 provide a single 
        compilation, covering 1776-1909. Volumes 3 and 4 are 
        supplements, covering 1910-1923 and 1923-1937, respectively. 
        Bilateral treaties and agreements are arranged alphabetically 
        by country, followed by multilateral treaties and agreements, 
        which are arranged chronologically. Volume 4 includes a list of 
        treaties by date of proclamation, with relevant citations to 
        Statutes at Large. This work is sometimes cited as Malloy, 
        after the compiler of the first two volumes.
            1776-1863 (Miller)
U.S. Treaties, etc. Treaties and other international acts of the United 
        States of America. Edited by Hunter Miller. Washington, U.S. 
        Government Printing Office, 1931-1948. 8 v. in 7.
      Volume 1 provides the plan of the compilation; volumes 2-8 
        provide the texts of treaties and agreements in the official 
        languages for the period 1776-1863, with commentary. 
        Arrangement is chronological. Includes legislative history and 
        commentary.
d. Status of treaties
            Treaties in Force
U.S. Department of State. Office of the Legal Adviser. Treaties in 
        force: a list of treaties and other international agreements of 
        the United States in force. Washington, for sale by the 
        Superintendent of Documents [as of the 1st of the year], U.S. 
        Government Printing Office, 1956 +
      This annual publication lists all U.S. treaties and international 
        agreements in force as of the beginning of the year. Bilateral 
        agreements are arranged by country and then subject. 
        Multilateral agreements are listed alphabetically by subject. 
        Parties to each agreement or treaty are indicated. References 
        are provided to the texts of treaties in Statutes at Large, 
        UST, TIAS, Bevans, and other U.S. official treaty collections.
------. A Guide to the United States treaties in force. By Igor K. 
        Kavass and Adolf Sprudzs. Buffalo, N.Y., W.S. Hein, 1982+
            Unperfected Treaties
Unperfected treaties of the United States of America, 1776-1976. Edited 
        and annotated by Christian L. Wiktor. Dobbs Ferry, N.Y., Oceana 
        Publications, 1976-1994. 9 v.
      Provides texts and annotations on treaties concluded by the 
        United States which did not go into force. Volume 1 covers the 
        years 1776-1855.
            Additional information
The Consolidated treaty series. Edited and annotated by Clive Parry. 
        Dobbs Ferry, N.Y., [Oceana Publications, 1969] (1981) v. 1-231
      ``The present series * * * is proposed * * * to make a beginning 
        with the year 1648 * * * and, for the period between that year 
        and the date of commencement of the League series 
        (approximately 1918-20), to reproduce such prints of treaties 
        in their original languages as can be found in whatsoever 
        collection along with such translations into English or French 
        as again * * * can be found.''
      ``Appendix of Dutch colonial agreements'': v. 227-231
Index-guide to treaties: based on the Consolidated treaty series, 
        edited and annotated by Clive Parry, LL.D., and all other 
        series therein utilised. Dobbs Ferry, N.Y., Oceana 
        Publications, 1979-1986. 3 v. in 12 (Consolidated treaty 
        series)
      Contents.--[pt. 1] v. 1. Irwin, P. General chronological list, 
        1648-1809 [i.e., 1648-1808]--v. 2. Hill, Brian H.W. General 
        chronological list, 1886-1903.--v. 5. Hill, Brian H.W. General 
        chronological list, 1904-1919.--[pt. 2] Meyer, Michael A. 
        Special chronological lists, 1648-1920 (2 v.)--[pt. 3] Hill, 
        Brian H.W. Party index. v. 1, Afghanistan-Finland.--v. 2, 
        France-German states.--v. 3, Great Britain-Italy.--v. 4, Japan-
        South Rhodesia.--v. 5, Spain-Zanzibar.
      This series continues the earlier series of works on treaties, 
        edited by Clive Parry. It includes ``newly concluded 
        international agreements, both executive agreements as well as 
        formal treaties, which have been ratified. The Department of 
        State Dispatch provides notation of whether or not treaties 
        have been ratified. Because the treaties published in this work 
        are relatively recent, TIAS (United States Treaties and Other 
        International Agreement) numbers have not yet been assigned. 
        Executive agreements included are assigned a number beginning 
        with the last two digits of the year. A complete index is 
        included.
United Nations. Secretary General. Multilateral treaties deposited with 
        the Secretary-General; status as of 31 December 1991. New York, 
        1992. 951 p. (ST/LEG/SER.E/10) This publication continues the 
        publication entitled, Multilateral Treaties in respect of which 
        the Secretary-General Performs Depositary Functions. The last 
        issue of that publication appeared in 1980 (ST/LEG/SER.D/13) 
        with data up to December 31, 1979. The 1992 volume of this 
        publication is the tenth in the series ST/LEG/SER.E.
      This publication covers ``all multilateral treaties the original 
        of which is deposited with the Secretary-General; the Charter 
        of the United Nations, in respect of which certain depository 
        functions have been conferred upon the Secretary-General * * *; 
        multilateral treaties formerly deposited with the Secretary 
        General of the League of Nations * * *; certain pre-United 
        Nations treaties.''
U.S. Department of State. Catalog of Treaties: 1814-1918. Washington, 
        U.S. Government Printing Office, 1919; reprinted by Oceana 
        Publications, Dobbs Ferry, N.Y., 1964. 716 p.
      ``This Catalog of Treaties, originally started as a card 
        catalogue * * * The treaties from 1814 to 1918 are arranged in 
        a chronological list, with information as to the time and place 
        of signature and of ratification, the signatory powers, the 
        treaty collections where the text may be found with the 
        language of the text, as well as cross-references to later 
        treaties which abrogate, modify, or supersede the treaty in 
        question * * *. The appendix contains a few of the most 
        important treaties before 1814, as well as early treaties 
        referred to in the main list.'' The index contains a country 
        index as well as an index to agreements of general 
        international character. A list of inter-American agreements is 
        also included.
      Oceana also offers the treaties and International Agreements 
        Researchers' Archive on CD-ROM. This set is searchable by such 
        elements as signatories, date signed, date in force, 
        expiration, TIAS and CTIA number.
                         4. topical collections
a. Diplomatic and national security issues
Elliott, Jonathan. The American diplomatic code, embracing a collection 
        of treaties and conventions between the United States and 
        foreign powers from 1778 to 1834; also, a concise diplomatic 
        manual containing a summary of the law of nations from the 
        works of Wicquefort, Martens, Kent, Vattel, Waqrd, Story. New 
        York, B. Franklin [1970] 2 v. (Burt Franklin research and 
        source works series, 605) Texts of treaties in English and 
        Dutch, French, Italian, or Spanish. Reprint of the 1834 ed.
Extradition laws and treaties, United States. Compiled by I. I. Kavass 
        and A. Sprudzs. Buffalo, N.Y., W.S. Hein, 1979. 2 v. (Loose-
        leaf) Texts of treaties were taken from the Treaties and other 
        international agreements of the United States of America. 1776-
        1949, edited by Charles I. Bevans, and United States treaties 
        and other international agreements (TIAS advance sheets).'' 
        ``For extradition laws of the 1800s, see The Law of 
        Extradition, International and Inter-state, by Samuel T. Spear. 
        Littleton, Colo., F.B. Rothman, 1984 [c1884] 766 p.
      Spear's work has as a subtitle: ``With an appendix, containing 
        the extradition treaties and laws of the United States, the 
        extradition laws of the states, several sections of the English 
        Extradition Act of 1870, and the opinion of Governor Cullom.'' 
        The Rothman publication is a reprint of the third edition, 
        originally published in Albany, by Wedd, Parsons in 1885.
Friedman, Leon. The Law of war, a documentary history. New York, Random 
        House, 1972. 2 v. Inter-American relations: a collection of 
        documents, legislation, descriptions of inter-American 
        organizations, and other material pertaining to inter-American 
        affairs; report prepared for the use of the Committee on 
        Foreign Relations, United States Senate and Committee on 
        Foreign Affairs, U.S. House of Representatives by the 
        Congressional Research Service, Library of Congress. 
        Washington, U.S. Government Printing Office, 1989. 999 p. 
        (Print, Senate, 100th Cong., 2d Sess., joint committee print, 
        S. Prt. 100-168)
      Partial contents.--Major inter-American treaties and 
        agreements.--Summary of major inter-American conferences, 
        meetings, or events, 1826-1988.--General U.S. legislation 
        related to Latin America and the Caribbean.--Major U.S. 
        legislation and agreements related to specific sub-regions and 
        countries.--Selected Presidential speeches.
The laws of armed conflicts. A collection of conventions, resolutions 
        and other documents. Edited by Dietrich Schindler and Jiri 
        Toman. Leiden, Sijthoff; Geneva, Henry Dunant Institute, 1973. 
        795 p. (Scientific collection of the Henry Dunant Institute.)
Major peace treaties of modern history, 1648-1967. Compiled by Fred L. 
        Israel. Commentaries by Emanuel Chill, with an introductory 
        essay by Arnold Toynbee. New York, Chelsea House Publishers, 
        1967-80. 5 v. v. 5 has title: Major peace treaties of modern 
        history, 1967-1979.
United Nations. Secretariat. A comprehensive study of the scope 
        originally proposed or aimed at in draft multilateral 
        disarmament treaties of a universal character concluded under 
        U.N. auspices and the scope finally fixed in those treaties, 
        including the contemplated measures for expanding that scope; 
        working paper. [New York] 1977. 54 p. (United Nations. 
        [Document] A/AC.187/68).
      At head of title: United Nations General Assembly.
      This document covers six multilateral disarmament treaties: 
        Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer 
        Space and Under Water; Treaty on Principles governing the 
        activities of States in the Exploration and Use of Outer space, 
        Including the Moon and Other Celestial Bodies; Treaty on the 
        Non-Proliferation of Nuclear Weapons: Treaty on the Prohibition 
        of the Emplacement of Nuclear Weapons and Other Weapons of Mass 
        Destruction on the Sea-Bed and the Ocean Floor and in the 
        Subsoil Thereof; Convention on the Prohibition of the 
        Development, Production and Stockpiling of Bacteriological 
        (Biological) and Toxic Weapons and on Their Destruction; 
        Convention on the Prohibition of Military of Any Other Hostile 
        Use of Environmental Modification Techniques.
United States. International terrorism: a compilation of major laws, 
        treaties, agreements, and executive documents: report prepared 
        for the Committee on Foreign Affairs, U.S. House of 
        Representatives, by the Congressional Research Service, Library 
        of Congress. Washington, For sale by the Superintendent of 
        Documents, Congressional Sales Office, U.S. Government Printing 
        Office, 1991. 1397 p.
      At head of title: 102d Congress, 1st Session. Committee Print.
      This compilation comprises major laws, treaties and agreements, 
        and executive documents relating to U.S. and international 
        efforts to combat terrorism. The legislation is subdivided into 
        sections relating to foreign assistance, the Department of 
        State, trade and financial issues, treaty implementation, and 
        other subjects.
      It also includes a selection of significant executive orders, 
        proclamations, messages to Congress, Presidential 
        determinations, and economic summit conference statements. 
        Bilateral agreements on aviation security and extradition, as 
        well as relevant multilateral treaties, are included. In 
        addition, the compilation includes a number of reports to the 
        President and to Congress and important regulations and 
        documents on such topics as hostage relief and air security.
U.S. Arms Control and Disarmament Agency. Arms control and disarmament 
        agreements: texts and histories of negotiations. 1990 ed. 
        Washington, U.S. Arms Control and Disarmament Agency, for sale 
        by the Superintendent of Documents, U.S. Government Printing 
        Office, 1990. 459 p. (U.S. Arms Control and Disarmament Agency 
        publication 105)
U.S. Congress. Senate. Committee on Foreign Relations. Legislation on 
        foreign relations through 1992. Washington, U.S. Government 
        Printing Office, 1993. 4 v. (Print, Senate, 103d Congress, 1st 
        Sess., S. Prt. 103-23)
      ``Printed for the use of the Committee on Foreign Relations and 
        Foreign Affairs of the Senate and the House of Representatives 
        respectively.''
      These volumes of legislation and related material are part of a 
        five volume set of laws and related material frequently 
        referred to by the Committees on Foreign Affairs of the House 
        of Representatives and Foreign Relations of the Senate amended 
        to date and annotated to show pertinent history or cross 
        references. Volumes I, II, III, and IV contain legislation and 
        related material and are republished with amendments and 
        additions at the end of each annual session of Congress. Volume 
        V which contains treaties and related material will not be 
        revised every year, but only as necessary.
b. Economic and commercial issues
Air and aviation treaties of the world. Edited by S. Houston Lay. Dobbs 
        Ferry, N.Y., Oceana Publications, 1979+
Air and aviation treaties of the world. Edited by S. Houston Lay. Dobbs 
        Ferry, N.Y., Oceana Publications, 1984--v. 1-3 (loose-leaf)
      Contents (Incomplete): pt. 1. Multilateral treaties v. 1-3. The 
        work is numbered in terms of parts, binders, and booklets; 
        statement of holdings reflects binders.
Commercial treaty index. [Chicago] American Bar Association Committee 
        on Commercial Treaties, 1973+ 1 v. (loose-leaf)
      This is a subject index of ``certain segments of the United 
        States' nontariff commercial treaty series.''
American Bar Association. Committee on Commercial Treaties. Commercial 
        treaty index. 2d ed. [Chicago] Section of International Law, 
        American Bar Association, 1974-1 v. Loose-leaf for updating.
Intergovernmental Maritime Consultative Organization. Status on 30 
        September 1971 of multilateral acts in respect of which the 
        Inter-Governmental Maritime Consultative Organization acts as 
        depositary. London, 1972? 63 p.
International tax treaties of all nations: containing English language 
        texts of all tax treaties between two or more nations in force 
        on July 1, 1975. Edited by Walter H. Diamond, and Dorothy B. 
        Diamond. Dobbs Ferry, N.Y., Oceana Publications, 1975+
International tax treaties of all nations, series B: containing tax 
        treaties not yet published by the United Nations, printed in 
        English, and in many instances, languages of the signatories. 
        Edited by Walter H. Diamond and Dorothy B. Diamond. Dobbs 
        Ferry, N.Y., Oceana Publications, 1978-1982. v. 1-12, Includes 
        unnumbered indexes which also index the International Tax 
        Treaties of All Nations.
Wallenstein, Gerd D. International telecommunication agreements. Dobbs 
        Ferry, N.Y., Oceana Publications, 1977 3 v.
      Provides the texts of international telecommunication treaties 
        and agreements which are in force.
c. International environmental issues and management of common areas
Christol, Carl Quimby. The modern international law of outer space. New 
        York, Pergamon Press,  1982. 932 p. (Pergamon policy 
        studies on international politics) Appendixes (pp. 849-915) 
        contain 12 international agreements.
Index to marine treaties. Compiled by John King Gamble, Jr. Seattle, 
        Division of Marine Resources, University of Washington, 1972. 
        438 p.
      Includes all marine treaties found in v. 1-643 of the United 
        Nations treaty series (UNTS); in the Canadian treaty series 
        (CTS) 1946-67; and in the United States Treaties and Other 
        International Acts Series (TIAS) 1950-70. A Washington sea 
        grant publication; WSG 72-2 On cover: Washington Sea Grant 
        Program.
U.S. Congress. Senate. Committee on Commerce, Science, and 
        Transportation. Space law and related documents: international 
        space law documents, U.S. space law documents. Washington, U.S. 
        Government Printing Office, 1990. 605 p. (Print, Senate, 101st 
        Cong., 2d Sess., committee print S. Print 101-88)
      This document consists of two parts: ``Part 1 on international 
        space law, and Part 2 on domestic space law.''
U.S. International Trade Commission. International agreements to 
        protect the environment and wildlife. Washington, The 
        Commission, 1991. ca. 217 p. in various pagings. (U.S. ITC 
        publication 2351)
      Categorizes 170 multilateral and bilateral agreements of 
        significance to U.S. interests into 8 groups: marine pollution; 
        pollution of air, land, and inland waters; boundary waters 
        between the United States and Mexico and Canada; 
        archaeological, cultural, historical or natural heritage; 
        maritime and coastal waters matters; nuclear pollution. 
        ``Summary information on all these agreements (when available) 
        includes objectives and obligations, dates signed, literature 
        citations, enforcement and dispute-settlement provisions, 
        information-exchange provisions, current issues, and a listing 
        of parties.''
International protection of the environment: treaties and related 
        documents compiled and edited by Bernd Ruster & Bruno Simma. 
        Dobbs Ferry, N.Y., Oceana Publications, 1975-1982. 30 v. Vols. 
        18-30 compiled and edited by Bernd Ruster, Bruno Simma, and 
        Michael Bock.
U.S. Library of Congress. Congressional Research Service. Treaties and 
        other international agreements on fisheries, oceanographic 
        resources, and wildlife to which the United States is party. 
        Prepared at the request of Honorable Warren G. Magnuson, 
        Chairman, for the use of the Committee on Commerce, U.S. 
        Senate. Washington, U.S. Government Printing Office, 1974 [i.e. 
        1975] 968 p.
      At head of title: 93d Congress, 2d Session. Committee Print.
------. Treaties and other international agreements on fisheries, 
        oceanographic resources, and wildlife involving the United 
        States. Prepared at the request of Warren G. Magnuson for the 
        use of the Committee on Commerce, Science, and Transportation, 
        United States Senate. Washington, U.S. Government Printing 
        Office, 1977. 1201 p.
U.S. Marine Mammal Commission. The Marine Mammal Commission compendium 
        of selected treaties, international agreements, and other 
        relevant documents on marine resources, wildlife and the 
        environment. Compiled by Richard L. Wallace. [Washington] The 
        Commission. [1994] 3 v.
      This work presents both multilateral and bilateral agreements.


    APPENDIX 2.--CASE-ZABLOCKI ACT ON TRANSMITTAL OF INTERNATIONAL 
           AGREEMENTS AND RELATED REPORTING REQUIREMENTS \1\
---------------------------------------------------------------------------

    \1\ Source: U.S. Congress. House Committee on International 
Relations and Senate Committee on Foreign Relations, Joint Committee 
Print. Legislation on Foreign Relations Through 1999, vol. II.
---------------------------------------------------------------------------
                              ----------                              


SECTIONS 112A AND 112B, TITLE 1, UNITED STATES CODE; AS ADDED BY ACT OF 
                    SEPTEMBER 23, 1950, 64 STAT. 980; AND ADDED BY 
                    PUBLIC LAW 92-403 [CASE-ZABLOCKI ACT, S. 596], 86 
                    STAT. 619, APPROVED AUGUST 22, 1972; AS AMENDED BY 
                    PUBLIC LAW 95-45 [DEPARTMENT OF STATE APPROPRIATION 
                    AUTHORIZATION; H.R. 5040] 91 STAT. 221, APPROVED 
                    JUNE 15, 1977; PUBLIC LAW 95-426 [FOREIGN RELATIONS 
                    AUTHORIZATION ACT, FISCAL YEAR 1979; H.R. 12598], 
                    92 STAT. 963, APPROVED OCTOBER 7, 1978; AND BY 
                    PUBLIC LAW 103-437 [H.R. 4777], 108 STAT. 4581, 
                    APPROVED NOVEMBER 2, 1994

Sec. 112A.\2\ UNITED STATES TREATIES AND OTHER INTERNATIONAL 
                    AGREEMENTS; CONTENTS; ADMISSIBILITY IN EVIDENCE
---------------------------------------------------------------------------

    \2\ Title VIII of the Legislative Branch Appropriations Act, 1976 
(Public Law 94-59; 89 Stat. 296; 44 U.S.C. 1317 note), however, 
provided the following:
    ``Hereafter, notwithstanding any other provisions of law, 
appropriations for the automatic distribution to Senators and 
Representatives (including Delegates to Congress and the Resident 
Commissioner from Puerto Rico) of copies of the Foreign Relations of 
the United States, the United States Treaties and other International 
Agreements, the District of Columbia Code and Supplements, and more 
than one bound set of the United States Code and Supplements shall not 
be available with respect to any Senator or Representative unless such 
Senator or Representative specifically, in writing, requests that he 
receive copies of such documents.''.
    See also Department of State regulations (22 CFR Part 181) for the 
coordination and reporting of international agreements.
---------------------------------------------------------------------------
    (a) \3\ The Secretary of State shall cause to be compiled, 
edited, indexed, and published, beginning as of January 1, 
1950, a compilation entitled ``United States Treaties and Other 
International Agreements,'' which shall contain all treaties to 
which the United States is a party that have been proclaimed 
during each calendar year, and all international agreements 
other than treaties to which the United States is a party that 
have been signed, proclaimed, or with reference to which any 
other final formality has been executed, during each calendar 
year. The said United States Treaties and Other International 
Agreements shall be legal evidence of the treaties, 
international agreements other than treaties, and proclamations 
by the President of such treaties and agreements, therein 
contained, in all the courts of the United States, the several 
States, and the Territories and insular possessions of the 
United States.
---------------------------------------------------------------------------
    \3\ Sec. 138(1) of the Foreign Relations Authorization Act, Fiscal 
Years 1994 and 1995 (Public Law 103-236; 108 Stat. 397), added subsec. 
designation ``(a)''.
---------------------------------------------------------------------------
    (b) \4\ The Secretary of State may determine that 
publication of certain categories of agreements is not 
required, if the following criteria are met:
---------------------------------------------------------------------------
    \4\ Sec. 138(2) of the Foreign Relations Authorization Act, Fiscal 
Years 1994 and 1995 (Public Law 103-236; 108 Stat. 397), added 
Subsections (b) and (c).
    The Secretary of State delegated functions authorized under 
Subsection (b) to the Legal Advisor (Department of State Public Notice 
2086; sec. 13 of Delegation of Authority No. 214; 59 F.R. 50790).
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    (1) such agreements are not treaties which have been brought into 
    force for the United States after having received Senate advice and 
    consent pursuant to section 2(2) of Article II of the Constitution 
    of the United States;
    (2) the public interest in such agreements is insufficient to 
    justify their publication, because (A) as of the date of enactment 
    of the Foreign Relations Authorization Act, Fiscal Years 1994 and 
    1995, the agreements are no longer in force, (B) the agreements do 
    not create private rights or duties, or establish standards 
    intended to govern government action in the treatment of private 
    individuals; (C) in view of the limited or specialized nature of 
    the public interest in such agreements, such interest can 
    adequately be satisfied by an alternative means; or (D) the public 
    disclosure of the text of the agreement would, in the opinion of 
    the President, be prejudicial to the national security of the 
    United States; and
    (3) copies of such agreements (other than those in paragraph (2) 
    (D)), including certified copies where necessary for litigation or 
    similar purposes, will be made available by the Department of State 
    upon request.
    (c) \4\ Any determination pursuant to subsection (b) shall be 
published in the Federal Register.

Sec. 112B.\5\ UNITED STATES INTERNATIONAL AGREEMENTS; TRANSMISSION TO 
                    CONGRESS
---------------------------------------------------------------------------

    \5\ Popularly referred to as the Case-Zablocki Act.
---------------------------------------------------------------------------
    (a) \6\ The Secretary of State shall transmit to the 
Congress the text of any international agreement (including the 
text of any oral international agreement, which agreement shall 
be reduced to writing) \7\ other than a treaty, to which the 
United States is a party as soon as practicable after such 
agreement has entered into force with respect to the United 
States but in no event later than sixty days thereafter.\8\ 
However, any such agreement the immediate public disclosure of 
which would, in the opinion of the President, be prejudicial to 
the national security of the United States shall not be so 
transmitted to the Congress but shall be transmitted to the 
Committee on Foreign Relations of the Senate and the Committee 
on Foreign Affairs \9\ of the House of Representatives under an 
appropriate injunction of secrecy to be removed only upon due 
notice from the President. Any department or agency of the 
United States Government which enters into any international 
agreement on behalf of the United States shall transmit to the 
Department of State the text of such agreement not later than 
twenty days after such agreement has been signed.\10\
---------------------------------------------------------------------------
    \6\ Sec. 708 of Public Law 95-426 (92 Stat. 993) inserted the 
subsection designation ``(a)'' and added subsections (b) through (e).
    \7\ Sec. 708 of Public Law 95-426 (92 Stat. 993) added the 
parenthetical phrase.
    \8\ Sec. 139 of the Foreign Relations Authorization Act, Fiscal 
Years 1988 and 1989 (Public Law 100-204; 101 Stat. 1347) required that 
if the 60-day period specified in this sentence was not honored, no 
funds authorized to be appropriated would be available after the end of 
the 60-day period to implement any agreement required to be transmitted 
until the text of such agreement was so transmitted. This restriction 
on use of funds was made effective 60 days after the enactment of 
Public Law 100-204 and made applicable during fiscal years 1988 and 
1989.
    \9\ Sec. 1 of Public Law 103-437 (108 Stat. 4581) struck out 
``Committee on International Relations'' and inserted in lieu thereof 
``Committee on Foreign Affairs''. Sec. 1(a)(5) of Public Law 104-14 
(109 Stat. 186) subsequently provided that references to the Committee 
on Foreign Affairs of the House of Representatives shall be treated as 
referring to the Committee on International Relations of the House of 
Representatives (but did not amend the law).
    \10\ This sentence was added by sec. 5(a) of Public Law 95-45 (91 
Stat. 224).
---------------------------------------------------------------------------
    (b) \6\ Not later than March 1, 1979, and at yearly 
intervals thereafter, the President shall, under his own 
signature, transmit to the Speaker of the House of 
Representatives and the chairman of the Committee on Foreign 
Relations of the Senate a report with respect to each 
international agreement which, during the preceding year, was 
transmitted to the Congress after the expiration of the 60-day 
period referred to in the first sentence of subsection (a), 
describing fully and completely the reasons for the late 
transmittal.
    (c) \6\ Notwithstanding any other provision of law, an 
international agreement may not be signed or otherwise 
concluded on behalf of the United States without prior 
consultation with the Secretary of State. Such consultation may 
encompass a class of agreements rather than a particular 
agreement.
    (d) \6\ The Secretary of State shall determine for and 
within the executive branch whether an arrangement constitutes 
an international agreement within the meaning of this section.
    (e) \6\ The President shall, through the Secretary of 
State, promulgate such rules and regulations as may be 
necessary to carry out this section.


 APPENDIX 3.--COORDINATION AND REPORTING OF INTERNATIONAL AGREEMENTS, 
                      STATE DEPARTMENT REGULATIONS

                              ----------                              

Regulations of the Secretary of State, 22 CFR Part 181, July 13, 1981, 
     46 F.R. 35918; amended at 61 F.R. 7071, February 26, 1996 \1\
---------------------------------------------------------------------------
    \1\ Sources: 22 CFR Part 181 (April 1, 2000 edition); U.S. 
Congress. House Committee on International Relations, Senate Committee 
on Foreign Relations, Joint Committee Print. Legislation on Foreign 
Relations Through 1999, volume II.
---------------------------------------------------------------------------
                 Subchapter S--International Agreements
    part 181--coordination and reporting of international agreements
Sec.
181.1  Purpose and application.
181.2  Criteria.
181.3  Determinations.
181.4  Consultations with the Secretary of State.
181.5  Twenty-day rule for concluded agreements.
181.6  Documentation and certification.
181.7  Transmittal to the Congress.
181.8  Publication.\2\
---------------------------------------------------------------------------
    \2\ Sec. 181.8 was added at 61 F.R. 7071, February 16, 1996.

    Authority: 1 U.S.C. 112a, 112b; and 22 U.S.C. 2651a.

Sec. 181.1  Purpose and application.

    (a) The purpose of this part is to implement the provisions of 1 
U.S.C. 112a and 112b, popularly known as the Case-Zablocki Act 
(hereafter referred to as ``the Act''), on the reporting to Congress, 
coordination with the Secretary of State and publication of 
international agreements.\3\ This part applies to all agencies of the 
U.S. Government whose responsibilities include the negotiation and 
conclusion of international agreements. This part does not, however, 
constitute a delegation by the Secretary of State of the authority to 
engage in such activities. Further, it does not affect any additional 
requirements of law governing the relationship between particular 
agencies and the Secretary of State in connection with international 
negotiations and agreements, or any other requirements of law 
concerning the relationship between particular agencies and the 
Congress. The term ``agency'' as used in this part means each authority 
of the United States Government, whether or not it is within or subject 
to review by another agency.
---------------------------------------------------------------------------
    \3\ The first sentence of sec. 181.1 was amended at 61 F.R. 7071, 
February 16, 1996. It formerly read as follows: ``The purpose of this 
part is to implement the provisions of 1 U.S.C. 112b, popularly known 
as the Case-Zablocki Act (hereafter referred to as ``the Act''), on the 
reporting to Congress and coordination with the Secretary of State of 
international agreements of the United States.''.
---------------------------------------------------------------------------
    (b) Pursuant to the key legal requirements of the Act--full and 
timely disclosure to the Congress of all concluded agreements and 
consultation by agencies with the Secretary of State with respect to 
proposed agreements--every agency of the Government is required to 
comply with each of the provisions set out in this part in 
implementation of the Act. Nevertheless, this part is intended as a 
framework of measures and procedures which, it is recognized, cannot 
anticipate all circumstances or situations that may arise. Deviation or 
derogation from the provisions of this part will not affect the legal 
validity, under United States law or under international law, of 
agreements concluded, will not give rise to a cause of action, and will 
not affect any public or private rights established by such agreements.

Sec. 181.2  Criteria.

    (a) General.--The following criteria are to be applied in deciding 
whether any undertaking, oral agreement, document, or set of documents, 
including an exchange of notes or of correspondence, constitutes an 
international agreement within the meaning of the Act, as well as 
within the meaning of 1 U.S.C. 112a, requiring the publication of 
international agreements. Each of the criteria except those in 
paragraph (a) (5) of this section must be met in order for any given 
undertaking of the United States to constitute an international 
agreement.
    (1) Identity and intention of the parties.--A party to an 
    international agreement must be a state, a state agency, or an 
    intergovernmental organization. The parties must intend their 
    undertaking to be legally binding, and not merely of political or 
    personal effect. Documents intended to have political or moral 
    weight, but not intended to be legally binding, are not 
    international agreements. An example of the latter is the Final Act 
    of the Helsinki Conference on Cooperation and Security in Europe. 
    In addition, the parties must intend their undertaking to be 
    governed by international law, although this intent need not be 
    manifested by a third-party dispute settlement mechanism or any 
    express reference to international law. In the absence of any 
    provision in the arrangement with respect to governing law, it will 
    be presumed to be governed by international law. This presumption 
    may be overcome by clear evidence, in the negotiating history of 
    the agreement or otherwise, that the parties intended the 
    arrangement to be governed by another legal system. Arrangements 
    governed solely by the law of the United States, or one of the 
    states or jurisdictions thereof, or by the law of any foreign 
    state, are not international agreements for these purposes. For 
    example, a foreign military sales loan agreement governed in its 
    entirety by U.S. law is not an international agreement.
    (2) Significance of the arrangement.--Minor or trivial 
    undertakings, even if couched in legal language and form, are not 
    considered international agreements within the meaning of the Act 
    or of 1 U.S.C. 112a. In deciding what level of significance must be 
    reached before a particular arrangement becomes an international 
    agreement, the entire context of the transaction and the 
    expectations and intent of the parties must be taken into account. 
    It is often a matter of degree. For example, a promise to sell one 
    map to a foreign nation is not an international agreement; a 
    promise to exchange all maps of a particular region to be produced 
    over a period of years may be an international agreement. It 
    remains a matter of judgment based on all of the circumstances of 
    the transaction. Determinations are made pursuant to Sec. 181.3. 
    Examples of arrangements that may constitute international 
    agreements are agreements that: (a) are of political significance; 
    (b) involve substantial grants of funds or loans by the United 
    States or credits payable to the United States; (c) constitute a 
    substantial commitment of funds that extends beyond a fiscal year 
    or would be a basis for requesting new appropriations; (d) involve 
    continuing and/or substantial cooperation in the conduct of a 
    particular program or activity, such as scientific, technical, or 
    other cooperation, including the exchange or receipt of information 
    and its treatment, or the pooling of data. However, individual 
    research grants and contracts do not ordinarily constitute 
    international agreements.
    (3) Specificity, including objective criteria for determining 
    enforceability.--International agreements require precision and 
    specificity in the language setting forth the undertakings of the 
    parties. Undertakings couched in vague or very general terms 
    containing no objective criteria for determining enforceability or 
    performance are not normally international agreements. Most 
    frequently such terms reflect an intent not to be bound. For 
    example, a promise to ``help develop a more viable world economic 
    system'' lacks the specificity essential to constitute a legally 
    binding international agreement. However, the intent of the parties 
    is the key factor. Undertakings as general as those of, for 
    example, Articles 55 and 56 of the United Nations Charter have been 
    held to create internationally binding obligations intended as such 
    by the parties.
    (4) Necessity for two or more parties.--While unilateral 
    commitments on occasion may be legally binding, they do not 
    constitute international agreements. For example, a statement by 
    the President promising to send money to Country Y to assist 
    earthquake victims would not be an international agreement. It 
    might be an important undertaking, but not all undertakings in 
    international relations are in the form of international 
    agreements. Care should be taken to examine whether a particular 
    undertaking is truly unilateral in nature, or is part of a larger 
    bilateral or multilateral set of undertakings. Moreover, 
    ``consideration,'' as that term is used in domestic contract law, 
    is not required for international agreements.
    (5) Form.--Form as such is not normally an important factor, but it 
    does deserve consideration. Documents which do not follow the 
    customary form for international agreements, as to matters such as 
    style, final clauses, signatures, or entry into force dates, may or 
    may not be international agreements. Failure to use the customary 
    form may constitute evidence of a lack of intent to be legally 
    bound by the arrangement. If, however, the general content and 
    context reveal an intention to enter into a legally binding 
    relationship, a departure from customary form will not preclude the 
    arrangement from being an international agreement. Moreover, the 
    title of the agreement will not be determinative. Decisions will be 
    made on the basis of the substance of the arrangement, rather than 
    on its denomination as an international agreement, a memorandum of 
    understanding, exchange of notes, exchange of letters, technical 
    arrangement, protocol, note verbale, aide-memoire, agreed minute, 
    or any other name.
    (b) Agency-level agreements.--Agency-level agreements are 
international agreements within the meaning of the Act and of 1 U.S.C. 
112a if they satisfy the criteria discussed in paragraph (a) of this 
section. The fact that an agreement is concluded by and on behalf of a 
particular agency of the United States Government, rather than the 
United States Government, does not mean that the agreement is not an 
international agreement. Determinations are made on the basis of the 
substance of the agency-level agreement in question.
    (c) Implementing agreements.--An implementing agreement, if it 
satisfies the criteria discussed in paragraph (a) of this section, may 
be an international agreement, depending upon how precisely it is 
anticipated and identified in the underlying agreement it is designed 
to implement. If the terms of the implementing agreement are closely 
anticipated and identified in the underlying agreement, only the 
underlying agreement is considered an international agreement. For 
example, the underlying agreement might call for the sale by the United 
States of 1000 tractors, and a subsequent implementing agreement might 
require a first installment on this obligation by the sale of 100 
tractors of the brand X variety. In that case, the implementing 
agreement is sufficiently identified in the underlying agreement, and 
would not itself be considered an international agreement within the 
meaning of the Act or of 1 U.S.C. 112a. Project annexes and other 
documents which provide technical content for an umbrella agreement are 
not normally treated as international agreements. However, if the 
underlying agreement is general in nature, and the implementing 
agreement meets the specified criteria of paragraph (a) of this 
section, the implementing agreement might well be an international 
agreement. For example, if the underlying agreement calls for the 
conclusion of ``agreements for agricultural assistance,'' but without 
further specificity, then a particular agricultural assistance 
agreement subsequently concluded in ``implementation'' of that 
obligation, provided it meets the criteria discussed in paragraph (a) 
of this section, would constitute an international agreement 
independent of the underlying agreement.
    (d) Extension and modifications of agreements.--If an undertaking 
constitutes an international agreement within the meaning of the Act 
and of 1 U.S.C. 112a, then a subsequent extension or modification of 
such an agreement would itself constitute an international agreement 
within the meaning of the Act of 1 U.S.C. 112a.
    (e) Oral agreements.--Any oral arrangement that meets the criteria 
discussed in paragraphs (a) (1)-(4) of this section is an international 
agreement and, pursuant to section (a) of the Act, must be reduced to 
writing by the agency that concluded the oral arrangement. In such 
written form, the arrangement is subject to all the requirements of the 
Act and of this part. Whenever a question arises whether an oral 
arrangement constitutes an international agreement, the arrangement 
shall be reduced to writing and the decision made in accordance with 
Sec. 181.3.

Sec. 181.3  Determinations.

    (a) Whether any undertaking, document, or set of documents 
constitutes or would constitute an international agreement within the 
meaning of the Act or of 1 U.S.C. 112a shall be determined by the Legal 
Adviser of the Department of State, a Deputy Legal adviser, or in most 
cases the Assistant Legal Adviser for Treaty Affairs. Such 
determinations shall be made either on a case-by-case basis, or on 
periodic consultation, as appropriate.
    (b) Agencies whose responsibilities include the negotiation and 
conclusion of international agreements are responsible for transmitting 
to the Assistant Legal Adviser for Treaty Affairs, for decision 
pursuant to paragraph (a) of this section, the texts of any document or 
set of documents that might constitute an international agreement. The 
transmittal shall be made prior to or simultaneously with the request 
for consultations with the Secretary of State required by subsection 
(c) of the Act and Sec. 181.4 of this part.
    (c) Agencies whose responsibilities include the negotiation and 
conclusion of large numbers of agency-level and implementing 
arrangements at overseas posts, only a small number of which might 
constitute international agreements within the meaning of the Act and 
of 1 U.S.C. 112a, are required to transmit prior to their entry into 
force only the texts of the more important of such arrangements for 
decision pursuant to paragraph (a) of this section. The texts of all 
arrangements that might constitute international agreements shall, 
however, be transmitted to the Office of the Assistant Legal Adviser 
for Treaty Affairs as soon as possible, and in no event to arrive at 
that office later than 20 days after their signing for decision 
pursuant to paragraph (a) of this section.
    (d) Agencies to which paragraphs (b) and (c) of this section apply 
shall consult periodically with the Assistant Legal Adviser for Treaty 
Affairs in order to determine which categories of arrangements for 
which they are responsible are likely to be international agreements 
within the meaning of the Act and of 1 U.S.C. 112a.

Sec. 181.4  Consultations with the Secretary of State.

    (a) The Secretary of State is responsible, on behalf of the 
President, for ensuring that all proposed international agreements of 
the United States are fully consistent with United States foreign 
policy objectives. Except as provided in Sec. 181.3(c) of this part, no 
agency of the U.S. Government may conclude an international agreement, 
whether entered into in the name of the U.S. Government or in the name 
of the agency, without prior consultation with the Secretary of State 
or his designee.
    (b) The Secretary of State (or his designee) gives his approval for 
any proposed agreement negotiated pursuant to his authorization, and 
his opinion on any proposed agreement negotiated by an agency which has 
separate authority to negotiate such agreement. The approval or opinion 
of the Secretary of State or his designee with respect to any proposed 
international agreement will be given pursuant to Department of State 
procedures set out in Volume 11, Foreign Affairs Manual, Chapter 700 
(Circular 175 procedure). Officers of the Department of State shall be 
responsible for the preparation of all documents required by the 
Circular 175 procedure.
    (c) Pursuant to the Circular 175 procedure, the approval of, or an 
opinion on a proposed international agreement to be concluded in the 
name of the U.S. Government will be given either by the Secretary of 
State or his designee. The approval of, or opinion on a proposed 
international agreement to be concluded in the name of a particular 
agency of the U.S. Government will be given by the interested assistant 
secretary or secretaries of State, or their designees, unless such 
official(s) judge that consultation with the Secretary, Deputy 
Secretary, or an Under Secretary is necessary. The approval of, or 
opinion on a proposed international agreement will normally be given 
within 20 days of receipt of the request for consultation and of the 
information as required by Sec. 181.4(d)-(g).
    (d) Any agency wishing to conclude an international agreement shall 
transmit to the interested bureau or office in the Department of State, 
or to the Office of the Legal Adviser, for consultation pursuant to 
this section, a draft text or summary of the proposed agreement, a 
precise citation of the Constitutional, statutory, or treaty authority 
for such agreement, and other background information as requested by 
the Department of State. The transmittal of the draft text or summary 
and citation of legal authority shall be made before negotiations are 
undertaken, or if that is not feasible, as early as possible in the 
negotiating process. In any event such transmittals must be made no 
later than 50 days prior to the anticipated date for concluding the 
proposed agreement. If unusual circumstances prevent this 50-day 
requirement from being met, the concerned agency shall use its best 
efforts to effect such transmittal as early as possible prior to the 
anticipated date for concluding the proposed agreement.
    (e) If a proposed agreement embodies a commitment to furnish funds, 
goods, or services that are beyond or in addition to those authorized 
in an approved budget, the agency proposing the agreement shall state 
what arrangements have been planned or carried out concerning 
consultation with the Office of Management and Budget for such 
commitment. The Department of State should receive confirmation that 
the relevant budget approved by the President provides or requests 
funds adequate to fulfill the proposed commitment, or that the 
President has made a determination to seek the required funds.
    (f) Consultation may encompass a specific class of agreements 
rather than a particular agreement where a series of agreements of the 
same general type is contemplated; that is, where a number of 
agreements are to be negotiated according to a more or less standard 
formula, such as, for example, Public Law 480 Agricultural Commodities 
Agreements. Any agency wishing to conclude a particular agreement 
within a specific class of agreements about which consultations have 
previously been held pursuant to this section shall transmit a draft 
text of the proposed agreement to the Office of the Legal Adviser as 
early as possible but in no event later than 20 days prior to the 
anticipated date for concluding the agreement.
    (g) The consultation requirement shall be deemed to be satisfied 
with respect to proposed international agreements of the United States 
about which the Secretary of State (or his designee) has been consulted 
in his capacity as a member of an interagency committee or council 
established for the purpose of approving such proposed agreements. 
Designees of the Secretary of State serving on any such interagency 
committee or council are to provide as soon as possible to the 
interested offices or bureaus of the Department of State and to the 
Office of the Legal Adviser copies of draft texts or summaries of such 
proposed agreements and other background information as requested.
    (h) Before an agreement containing a foreign language text may be 
signed or otherwise concluded, a signed memorandum must be obtained 
from a responsible language officer of the Department of State or of 
the U.S. Government agency concerned certifying that the foreign 
language text and the English language text are in conformity with each 
other and that both texts have the same meaning in all substantive 
respects. The signed memorandum is to be made available to the 
Department of State upon request.

Sec. 181.5  Twenty-day rule for concluded agreements.

    (a) Any agency, including the Department of State, that concludes 
an international agreement within the meaning of the Act and of 1 
U.S.C. 112a, whether entered into in the name of the U.S. Government or 
in the name of the agency, must transmit the text of the concluded 
agreement to the office of the Assistant Legal Adviser for Treaty 
Affairs as soon as possible and in no event to arrive at that office 
later than 20 days after the agreement has been signed. The 20-day 
limit, which is required by the Act, is essential for purposes of 
permitting the Department of State to meet its obligation under the Act 
to transmit concluded agreements to the Congress no later than 60 days 
after their entry into force.
    (b) In any case of transmittal after the 20-day limit, the agency 
or Department of State office concerned may be asked to provide to the 
Assistant Legal Adviser for Treaty Affairs a statement describing the 
reasons for the late transmittal. Any such statements will be used, as 
necessary, in the preparation of the annual report on late 
transmittals, to be signed by the President and transmitted to the 
Congress, as required by subsection (b) of the Act.

Sec. 181.6  Documentation and certification.

    (a) Transmittals of concluded agreements to the Assistant Legal 
Adviser for Treaty Affairs pursuant to Sec. 181.5 must include the 
signed or initialed original texts, together with all accompanying 
papers, such as agreed minutes, exchanges of notes, or side letters. 
The texts transmitted must be accurate, legible, and complete, and must 
include the texts of all languages in which the agreement was signed or 
initiated. Names and identities of the individuals signing or 
initialing the agreements, for the foreign government as well as for 
the United States, must, unless clearly evident in the texts 
transmitted, be separately provided.
    (b) Agreements from overseas posts should be transmitted to the 
Department of State by priority airgram, marked for the attention of 
the Assistant Legal Adviser for Treaty Affairs, with the following 
notation below the enclosure line: FAIM: Please send attached original 
agreement to L/T on arrival.
    (c) Where the original texts of concluded agreements are not 
available, certified copies must be transmitted in the same manner as 
original texts. A certified copy must be an exact copy of the signed 
original.
    (d) When an exchange of diplomatic notes between the United States 
and a foreign government constitutes an agreement or has the effect of 
extending, modifying, or terminating an agreement to which the United 
States is a party, a properly certified copy of the note from the 
United States to the foreign government, and the signed original of the 
note from the foreign government, must be transmitted. If, in 
conjunction with the agreement signed, other notes related thereto are 
exchanged (either at the same time, beforehand, or subsequently), 
properly certified copies of the notes from the United States to the 
foreign government must be transmitted with the signed originals of the 
notes from the foreign government.
    (e) Copies may be certified either by a certification on the 
document itself, or by a separate certification attached to the 
document. A certification on the document itself is placed at the end 
of the document. It indicates, either typed or stamped, that the 
document is a true copy of the original signed or initialed by (insert 
full name of signing officer), and it is signed by the certifying 
officer. If a certification is typed on a separate sheet of paper, it 
briefly describes the document certified and states that it is a true 
copy of the original signed by (full name) and it is signed by the 
certifying officer.

Sec. 181.7  Transmittal to the Congress.

    (a) International agreements other than treaties shall be 
transmitted by the Assistant Legal Adviser for Treaty Affairs to the 
President of the Senate and the Speaker of the House of Representatives 
as soon as practicable after the entry into force of such agreements, 
but in no event later than 60 days thereafter.
    (b) Classified agreements shall be transmitted by the Assistant 
Secretary of State for Congressional Relations to the Senate Committee 
on Foreign Relations and to the House Committee on Foreign Affairs.\4\
---------------------------------------------------------------------------
    \4\ Sec. 1(a) (5) of Public Law 104-14 (109 Stat. 186) provided 
that references to the Committee on Foreign Affairs of the House of 
Representatives shall be treated as referring to the Committee on 
International Relations of the House of Representatives.
---------------------------------------------------------------------------
    (c) The Assistant Legal Adviser for Treaty Affairs shall also 
transmit to the President of the Senate and to the Speaker of the House 
of Representatives background information to accompany each agreement 
reported under the Act. Background statements, while not expressly 
required by the Act, have been requested by the Congress and have 
become an integral part of the reporting requirement. Each background 
statement shall include information explaining the agreement, the 
negotiations, the effect of the agreement, and a precise citation of 
legal authority. At the request of the Assistant Legal Adviser for 
Treaty Affairs, each background statement is to be prepared in time for 
transmittal with the agreement it accompanies by the office most 
closely concerned with the agreement. Background statements for 
classified agreements are to be transmitted by the Assistant Secretary 
of State for Congressional Relations to the Senate Committee on Foreign 
Relations and to the House Committee on Foreign Affairs.\3\
    (d) Pursuant to Section 12 of the Taiwan Relations Act (22 U.S.C. 
3311), any agreement entered into between the American Institute in 
Taiwan and the governing authorities on Taiwan, or any agreement 
entered into between the Institute and an agency of the United States 
Government, shall be transmitted by the Assistant Secretary of State 
for Congressional Relations to the President of the Senate and to the 
Speaker of the House of Representatives as soon as practicable after 
the entry into force of such agreements, but in no event later than 60 
days thereafter. Classified agreements entered into by the Institute 
shall be transmitted by the Assistant Secretary for Congressional 
Relations to the Senate Committee on Foreign Affairs.\5\
---------------------------------------------------------------------------
    \5\ In original. Should read Senate Committee on Foreign Relations.
---------------------------------------------------------------------------

Sec. 181.8  Publication.\6\

    (a) The following categories of international agreements will not 
be published in United States Treaties and Other International 
Agreements:
---------------------------------------------------------------------------
    \6\ Sec. 181.8 was added at 61 F.R. 7071, February 16, 1996.
---------------------------------------------------------------------------
    (1) Bilateral agreements for the rescheduling of intergovernmental 
    debt payments;
    (2) Bilateral textile agreements concerning the importation of 
    products containing specified textile fibers done under the 
    Agricultural Act of 1956, as amended;
    (3) Bilateral agreements between postal administrations governing 
    technical arrangements;
    (4) Bilateral agreements that apply to specified military 
    exercises;
    (5) Bilateral military personnel exchange agreements;
    (6) Bilateral judicial assistance agreements that apply only to 
    specified civil or criminal investigations or prosecutions;
    (7) Bilateral mapping agreements;
    (8) Tariff and other schedules under the General Agreement on 
    Tariffs and Trade and under the Agreement of the World Trade 
    Organization;
    (9) Agreements that have been given a national security 
    classification pursuant to Executive Order No. 12958 or its 
    successors; and
    (b) Agreements on the subjects listed in paragraphs (a) (1) through 
(9) of this section that had not been published as of February 26, 
1996.
    (c) Any international agreements in the possession of the 
Department of State, other than those in paragraph (a) (9) of this 
section, but not published will be made available upon request by the 
Department of State.


  APPENDIX 4.--DEPARTMENT OF STATE CIRCULAR 175 PROCEDURES ON TREATIES

                              ----------                              


 Foreign Affairs Manual, 11 FAM 700, Treaties and Other International 
           Agreements, TL:POL--36, Revised February 25, 1985

                               11 FAM 710
                         Purpose and Disclaimer
                           11 FAM 711 Purpose
                              (state only)
    a. The purpose of this chapter is to facilitate the application of 
orderly and uniform measures and procedures for the negotiation, 
signature, publication, and registration of treaties and other 
international agreements of the United States. It is also designed to 
facilitate the maintenance of complete and accurate records on treaties 
and agreements and the publication of authoritative information 
regarding them.
    b. The chapter is not a catalog of all the essential guidelines or 
information pertaining to the making and application of international 
agreements. It is limited to guidelines or information necessary for 
general guidance.
                         11 FAM 712 Disclaimer
                              (state only)
    This chapter is intended solely as a general outline of measures 
and procedures ordinarily followed which, it is recognized, cannot 
anticipate all circumstances or situations that may arise. Deviation or 
derogation from the provisions of this chapter will not invalidate 
actions taken by officers nor affect the validity of negotiations 
engaged in or of treaties or other agreements concluded.
                   11 FAM 713 Through 719 Unassigned
                               11 FAM 720
                       Negotiation and Signature
                  11 FAM 720.1 circular 175 procedure
    This subchapter is a codification of the substance of Department 
Circular No. 175, December 13, 1955, as amended, on the negotiation and 
signature of treaties and other international agreements. It may be 
referred to for convenience and continuity as the ``Circular 175 
Procedure.''
                    11 FAM 720.2 general objectives
    The objectives are:
    a. That the making of treaties and other international agreements 
for the United States is carried out within constitutional and other 
appropriate limits;
    b. That the objectives to be sought in the negotiation of 
particular treaties and other international agreements are approved by 
the Secretary or an officer specifically authorized by him or her for 
that purpose;
    c. That timely and appropriate consultation is had with 
congressional leaders and committees on treaties and other 
international agreements;
    d. That where, in the opinion of the Secretary of State or a 
designee, the circumstances permit, the public be given an opportunity 
to comment on treaties and other international agreements;
    e. That firm positions departing from authorized positions are not 
undertaken without the approval of the Legal Adviser and interested 
Assistant Secretaries or their deputies;
    f. That the final texts developed are approved by the Legal Adviser 
and the interested assistant secretaries or their deputies and, when 
required, brought a reasonable time before signature to the attention 
of the Secretary or an officer specifically designated by the Secretary 
for that purpose;
    g. That authorization to sign the final text is obtained and 
appropriate arrangements for signature are made; and
    h. That there is compliance with the requirements of 1 U.S.C. 112b, 
as amended, on the transmission of the texts of international 
agreements other than treaties to the Congress (see 11 FAM 724); the 
law on the publication of treaties and other international agreements 
(see 11 FAM 725); and treaty provisions on registration (see 11 FAM 
750.3-3).
        11 FAM 721 Exercise of the International Agreement Power
            11 FAM 721.1 determination of type of agreement
    The following considerations will be taken into account along with 
other relevant factors in determining whether an international 
agreement shall be dealt with by the United States as a treaty to be 
brought into force with the advice and consent of the Senate or as an 
agreement to be brought into force on some other constitutional basis.
                11 FAM 721.2 constitutional requirements
    There are two procedures under the Constitution through which the 
United States becomes a party to international agreement. Those 
procedures and the constitutional parameters of each are:
            a. Treaties
    International agreements (regardless of their title, designation, 
or form) whose entry into force with respect to the United States takes 
place only after the Senate has given its advice and consent are 
``treaties.'' The President, with the advice and consent of two-thirds 
of the Senators present, may enter into an international agreement on 
any subject genuinely of concern in foreign relations, so long as the 
agreement does not contravene the United States Constitution; and
            b. International Agreements Other Than Treaties
    International agreements brought into force with respect to the 
United States on a constitutional basis other than with the advice and 
consent of the Senate are ``international agreements other than 
treaties.'' (The term ``executive agreement'' is appropriately reserved 
for agreements made solely on the basis of the constitutional authority 
of the President.) There are three constitutional bases for 
international agreements other than treaties as set forth below. An 
international agreement may be concluded pursuant to one or more of 
these constitutional bases:
    (1) Agreements Pursuant to Treaty.--The President may conclude an 
international agreement pursuant to a treaty brought into force with 
the advice and consent of the Senate, the provisions of which 
constitute authorization for the agreement by the Executive without 
subsequent action by the Congress;
    (2) Agreements Pursuant to Legislation.--The President may conclude 
an international agreement on the basis of existing legislation or 
subject to legislation to be enacted by the Congress; and
    (3) Agreements Pursuant to the Constitutional Authority of the 
President.--The President may conclude an international agreement on 
any subject within his constitutional authority so long as the 
agreement is not inconsistent with legislation enacted by the Congress 
in the exercise of its constitutional authority. The constitutional 
sources of authority for the President to conclude international 
agreements include:
    (a) The President's authority as Chief Executive to represent the 
nation in foreign affairs;
    (b) The President's authority to receive ambassadors and other 
public ministers;
    (c) The President's authority as ``Commander-in-Chief''; and
    (d) The President's authority to ``take care that the laws be 
faithfully executed.''
   11 FAM 721.3 considerations for selecting among constitutionally 
                         authorized procedures
    In determining a question as to the procedure which should be 
followed for any particular international agreement, due consideration 
is given to the following factors along with those in 11 FAM 721.2:
    a. The extent to which the agreement involves commitments or risks 
affecting the nation as a whole;
    b. Whether the agreement is intended to affect State laws;
    c. Whether the agreement can be given effect without the enactment 
of subsequent legislation by the Congress;
    d. Past U.S. practice as to similar agreements;
    e. The preference of the Congress as to a particular type of 
agreement;
    f. The degree of formality desired for an agreement;
    g. The proposed duration of the agreement, the need for prompt 
conclusion of an agreement, and the desirability of concluding a 
routine or short-term agreement; and
    h. The general international practice as to similar agreements.
    In determining whether any international agreement should be 
brought into force as a treaty or as an international agreement other 
than a treaty, the utmost care is to be exercised to avoid any invasion 
or compromise of the constitutional powers of the Senate, the Congress 
as a whole, or the President.
11 FAM 721.4 questions as to type of agreement to be used; consultation 
                             with congress
    a. All legal memorandums accompanying Circular 175 requests (see 11 
FAM 722.3, paragraph h) will discuss thoroughly the bases for the type 
of agreement recommended.
    b. When there is any question whether an international agreement 
should be concluded as a treaty or as an international agreement other 
than a treaty, the matter is brought to the attention of the Legal 
Adviser of the Department. If the Legal Adviser considers the question 
to be a serious one that may warrant congressional consultation, a 
memorandum will be transmitted to the Assistant Secretary for 
Legislative and Intergovernmental Affairs and other officers concerned. 
Upon receiving their views on the subject, the Legal Adviser shall, if 
the matter has not been resolved, transmit a memorandum thereon to the 
Secretary for a decision. Every practicable effort will be made to 
identify such questions at the earliest possible date so that 
consultations may be completed in sufficient time to avoid last-minute 
consideration.
    c. Consultations on such questions will be held with congressional 
leaders and committees as may be appropriate. Arrangements for such 
consultations shall be made by the Assistant Secretary for Legislative 
and Intergovernmental Affairs and shall be held with the assistance of 
the Office of the Legal Adviser and such other offices as may be 
determined. Nothing in this section shall be taken as derogating from 
the requirement of appropriate consultations with the Congress in 
accordance with 11 FAM 723.1, paragraph e, in connection with the 
initiation of, and developments during negotiations for international 
agreements, particularly where the agreements are of special interest 
to the Congress.
11 FAM 722 Action Required in Negotiation and/or Signature of Treaties 
                             and Agreements
     11 FAM 722.1 authorization required to undertake negotiations
    Negotiations of treaties, or other international agreements on 
matters of substance, or for their extension or revision, are not to be 
undertaken, nor any exploratory discussions undertaken with 
representatives of another government, until authorized in writing by 
the Secretary or an officer specifically authorized by the Secretary 
for that purpose. Notification of the termination of any treaty or 
other international agreement on matters of substance requires similar 
authorization.
                  11 FAM 722.2 scope of authorization
    Approval of a request for authorization to negotiate a treaty or 
other international agreement does not constitute advance approval of 
the text nor authorization to agree upon a date for signature or to 
sign the treaty or agreement. Authorization to agree upon a given date 
for, and to proceed with, signature must be specifically requested in 
writing, as provided in 11 FAM 722.3. This applies to treaties and 
other agreements to be signed abroad as well as those to be signed at 
Washington. Special instructions may be required, because of the 
special circumstances involved, for multilateral conventions or 
agreements to be signed at international conferences.
11 FAM 722.3 request for authorization to negotiate and/or sign action 
                               memorandum
    a. A request for authorization to negotiate and/or sign a treaty or 
other international agreement takes the form of an action memorandum 
addressed to the Secretary or other principal to whom such authority 
has been delegated, as appropriate, and cleared with the Office of the 
Legal Adviser (including the Assistant Legal Adviser for Treaty 
Affairs), the Office of the Assistant Secretary for Legislative and 
Intergovernmental Affairs, other appropriate bureaus, and any other 
agency (such as Defense, Commerce, etc.) which has primary 
responsibility or a substantial interest in the subject matter. It is 
submitted through the Executive Secretariat.
    b. The action memorandum may request one of the following: (1) 
authority to negotiate, (2) authority to sign, or (3) authority to 
negotiate and sign. The request in each instance states that any 
substantive changes in the draft text will be cleared with the Office 
of the Legal Adviser and other specified regional and/or functional 
bureaus before definitive agreement is reached. Drafting offices should 
consult closely with the Office of the Legal Adviser to insure that all 
legal requirements are met.
    c. The action memorandum indicates what arrangements are planned as 
to: (1) congressional consultation and (2) opportunity for public 
comment on the treaty or agreement being negotiated, signed, or acceded 
to.
    d. The action memorandum shall indicate: (1) whether a proposed 
treaty or agreement embodies a commitment to furnish funds, goods, or 
services beyond or in addition to those authorized in an approved 
budget; and if so, (2) arrangements planned or carried out concerning 
consultation with the Office of Management and Budget (OMB) for such 
commitment.
    e. The Department will not authorize such commitments without 
confirmation that the relevant budget approved by the President 
requests or provides funds adequate to fulfill the proposed commitment 
or that the President has made a determination to seek the required 
funds.
    f. Where it appears that there may be obstacles to the immediate 
public disclosure of the text upon its entry into force, the action 
memorandum shall include an explanation thereof (see 11 FAM 723.2 and 
11 FAM 723.3).
    g. An action memorandum dealing with an agreement that has a 
potential for adverse environmental impact should contain a statement 
indicating whether the agreement will significantly affect the quality 
of the human environment.
    h. The action memorandum is accompanied by: (1) the U.S. draft, if 
available, of any agreement or other instrument intended to be 
negotiated; or (2) the text of any agreement and related exchange of 
notes, agreed minutes, or other document to be signed (with appropriate 
clearances, including the Assistant Legal Adviser for Treaty affairs); 
and (3) a memorandum of law prepared in the Office of the Legal 
Adviser.
    i. These provisions shall apply whether a proposed international 
agreement is to be concluded in the name of the U.S. Government or in 
the name of a particular agency of the U.S. Government. However, in the 
latter case, the action memorandum may be addressed to the interested 
Assistant Secretary or Secretaries of State, or their designees in 
writing, unless such official(s) judge that consultation with the 
Secretary, Deputy Secretary or an Under Secretary is necessary. (See 22 
CFR 181.4.)
                  11 FAM 722.4 separate authorizations
    When authorization is sought for a particular treaty or other 
agreement, either multilateral or bilateral, the action memorandum for 
this purpose outlines briefly and clearly the principal features of the 
proposed treaty or other agreement, indicates any special problems 
which may be encountered and, if possible, the contemplated solutions 
of those problems.
                  11 FAM 722.5 blanket authorizations
    In general, blanket authorizations are appropriate only in those 
instances where, in carrying out or giving effect to provisions of law 
or policy decisions, a series of agreements of the same general type is 
contemplated; that is, a number of agreements to be negotiated 
according to a more or less standard formula (for example, Pub. L. 480 
Agricultural Commodities Agreements; Educational Exchange Agreements; 
Investment Guaranty Agreements; Weather Station Agreements, etc.) or a 
number of treaties to be negotiated according to a more or less 
standard formula (for example, consular conventions, extradition 
treaties, etc.). Each request for blanket authorization shall specify 
the office or officers to whom the authority is to be delegated. The 
basic precepts under 11 FAM 722.3 and 11 FAM 722.4 apply equally to 
requests for blanket authorizations. The specific terms of any blanket 
authorization, i.e., that the text of any particular agreement shall be 
cleared by the Office of the Legal Adviser and other interested bureaus 
before signature, shall be observed in all cases.
          11 FAM 722.6 certification of foreign language text
    a. Before any treaty or other agreement containing a foreign 
language text is laid before the Secretary (or any person authorized by 
the Secretary) for signature, either in the Department or at a post, a 
signed memorandum must be obtained from a responsible language officer 
of the Department certifying that the foreign language text and the 
English language text are in conformity with each other and that both 
texts have the same meaning in all substantive respects. A similar 
certification must be obtained for exchanges of notes that set forth 
the terms of an agreement in two languages.
    b. In exceptional circumstances the Department can authorize the 
certification to be made at a post.
          11 FAM 722.7 transmission of texts to the secretary
    The texts of treaties and other international agreements must be 
completed and approved in writing by all responsible officers concerned 
sufficiently in advance to give the Secretary, or the person to whom 
authority to approve the text has been delegated, adequate time before 
the date of signing to examine the text and dispose of any questions 
that arise. Posts must transmit the texts to the Department as 
expeditiously as feasible to assure adequate time for such 
consideration. Except as otherwise specifically authorized by the 
Secretary, a complete text of a treaty or other international agreement 
must be delivered to the Secretary or other person authorized to 
approve the text, before any such text is agreed upon as final or any 
date is agreed upon for its signature.
 11 FAM 723 Responsibility of Office or Officer Conducting Negotiations
                  11 FAM 723.1 conduct of negotiations
    The office or officer responsible for any negotiations keeps in 
mind:
    a. That during the negotiations no position is communicated to a 
foreign government or to an international organization as a U.S. 
position that goes beyond any existing authorization or instructions;
    b. That no proposal is made or position is agreed to beyond the 
original authorization without appropriate clearance (see 11 FAM 722.3, 
paragraph a);
    c. That all significant policy-determining memorandums and 
instructions to the field on the subject of the negotiations have 
appropriate clearance (see 11 FAM 722.3, paragraph a);
    d. That the Secretary or other principal, as appropriate, is kept 
informed in writing of important policy decisions and developments, 
including any particularly significantly departures from substantially 
standard drafts that have been evolved;
    e. That with the advice and assistance of the Assistant Secretary 
for Legislative and Intergovernmental Affairs, the appropriate 
congressional leaders and committees are advised of the intention to 
negotiate significant new international agreements, consulted 
concerning such agreements, and kept informed of developments affecting 
them, including especially whether any legislation is considered 
necessary or desirable for the implementation of the new treaty or 
agreement. Where the proposal for any especially important treaty or 
other international agreement is contemplated, the Office of the 
Assistant Secretary for Legislative and Intergovernmental Affairs will 
be informed as early as possible by the office responsible for the 
subjects;
    f. That the interest of the public be taken into account and, where 
in the opinion of the Secretary of State or his or her designee the 
circumstances permit, the public be given an opportunity to comment;
    g. That in no case, after accord has been reached on the substance 
and wording of the texts to be signed, do the negotiators sign an 
agreement or exchange notes constituting an agreement until a request 
under 11 FAM 722.3 for authorization to sign has been approved and, if 
at a post abroad, until finally Instructed by the Department to do so 
as stated in 11 FAM 730.3. If an agreement is to be signed in two 
languages, each language text must be cleared in full with the Language 
Services Division or, if at a post abroad, with the Department before 
signature, as stated in 11 FAM 722.6;
    h. That due consideration is given also to the provisions of 11 FAM 
723.2 through 11 FAM 723.9, 11 FAM 730.3, and 11 FAM 731 of this 
chapter; and
    i. That in any case where any other department or agency is to play 
a primary or significant role or has a major interest in negotiation of 
an international agreement, the appropriate official or officials in 
such department or agency are informed of the provisions of this 
subchapter.
    11 FAM 723.2 avoiding obstacles to publications and registration
    The necessity of avoiding any commitment incompatible with the law 
requiring publication (1 U.S.C. 112a) and with the treaty provisions 
requiring registration (see 11 FAM 750.3-3) should be borne in mind by 
U.S. negotiators. Although negotiations may be conducted on a 
confidential basis, every practicable effort must be made to assure 
that any definitive agreement or commitment entered into will be devoid 
of any aspect which would prevent the publication and registration of 
the agreement.
         11 FAM 723.3 questions on immediate public disclosure
    in any instance where it appears to the officer or office in the 
Department responsible for the negotiations or to the U.S. 
representatives that the immediate public disclosure upon its entry 
into force of an agreement under negotiations would be prejudicial to 
the national security of the United States, the pertinent circumstances 
shall be reported to the Secretary of State and his or her decision 
awaited before any further action is taken. Where such circumstances 
are known before authorization to negotiate or to sign is requested, 
they shall be included in the request for authorization. All such 
reports and requests are to be cleared with the Office of the Legal 
Adviser.
                     11 FAM 723.4 public statements
    No public statement is to be made indicating that agreement on a 
text has been reached, or that negotiations have been successfully 
completed, before authorization is granted to sign the treaty or other 
agreement. If such authorization has been granted subject to a 
condition that no substantive change in the proposed text is made 
without appropriate clearance (see 11 FAM 722.3, paragraph a), no such 
public statement is to be made until definitive agreement on the text 
has been reached and such clearance has been received. Normally, such a 
public statement is made only at the time a treaty or other agreement 
is actually signed, inasmuch as it remains possible that last-minute 
changes will be made in the text. Any such statement prior to that time 
must have the appropriate clearance, and the approval of the Secretary 
or the Department principal who originally approved the action 
memorandum request under ``Circular 175 Procedure.''
                   11 FAM 723.5 english-language text
    Negotiators will assure that every bilateral treaty or other 
international agreement to be signed for the United States contains an 
English-language text. If the language of the other country concerned 
is one other than English, the text is done in English and, if desired 
by the other country, in the language of that country. A U.S. note that 
constitutes part of an international agreement effected by exchange of 
notes is always in the English language. If it quotes a foreign 
government note, the quotation is to be rendered in English 
translation. A U.S. note is not in any language in addition to English, 
unless specifically authorized (with the clearance of the Assistant 
Legal Adviser for Treaty Affairs). The note of the other government 
concerned may be in whatever language that government desires.
 11 FAM 723.6 transmission of signed texts to assistant legal adviser 
                           for treaty affairs
    a. The officer responsible for the negotiation of a treaty or other 
agreement at any post is responsible for insuring the most expeditious 
transmission of the signed original text, together with all 
accompanying papers such as agreed minutes, exchanges of notes, plans, 
etc. (indicating full names of persons who signed), to the Department 
for the attention of the Assistant Legal Adviser for Treaty Affairs; 
provided, that where originals are not available, accurate certified 
copies are obtained and transmitted as in the case of the original. 
(See 11 FAM 723.7, 11 FAM 723.8, and 11 FAM 723.9.) The transmittal is 
by airgram, not by transmittal slip or operations memorandum.
    b. Any officer in the Department having possession of or receiving 
from any source a signed original or certified copy of a treaty or 
agreement or of a note or other document constituting a part of a 
treaty or agreement must forward such documents immediately to the 
Assistant Legal Adviser for Treaty Affairs.
    11 FAM 723.7 transmission of certified copies to the department
    When an exchange of diplomatic notes between the mission and a 
foreign government constitutes an agreement or has the effect of 
extending, modifying, or terminating an agreement to which the United 
States is a party, a properly certified copy of the note from the 
mission to the foreign government, and the signed original of the note 
from the foreign government are sent, as soon as practicable 
(indicating full names of persons who signed) to the Department for 
attention of the Assistant Legal Adviser for Treaty Affairs. The 
transmittal is by airgram, not by transmittal slip or operations 
memorandum.
    Likewise, if, in addition to the treaty or other agreement signed, 
notes related thereto are exchanged (either at the same time, 
beforehand, or thereafter), a properly certified copy (copies) of the 
note(s) from the mission to the foreign government are transmitted with 
the signed original(s) of the note(s) from the foreign government.
    In each instance, the mission retains for its files certified 
copies of the note exchanged. The U.S. note is prepared in accordance 
with the rules prescribed in 5 FAH-1, Correspondence Handbook. The note 
of the foreign government is prepared in accordance with the style of 
the foreign ministry and usually in the language of that country. 
Whenever practicable, arrangements are made for the notes to bear the 
same date.
                  11 FAM 723.8 certification of copies
    If a copy of a note is a part of an international agreement, such 
copy is certified by a duly commissioned and qualified Foreign Service 
officer either (a) by a certification on the document itself, or (b) by 
a separate certification attached to the document. A certification on 
the document itself is placed at the end of the document. It indicates, 
either typed or rubber stamped, that the document is a true copy of the 
original signed (or initialed) by (INSERT FULL NAME OF OFFICER WHO 
SIGNED DOCUMENT), and it is signed by the certifying officer. If a 
certification is typed on a separate sheet of paper, it briefly 
describes the document certified and states that it is a true copy of 
the original signed (or initialed) by (FULL NAME), and it is signed and 
dated by the certifying officer. The certification may be stapled to 
the copy of the note.
          11 FAM 723.9 preparation of copies for certification
    For purposes of accuracy of the Department's records and 
publication and registration, a certified copy must be an exact copy of 
the signed original. It must be made either by typewriter (ribbon or 
carbon copy) or by facsimile reproduction on white durable paper (not 
by the duplimat method) and must be CLEARLY LEGIBLE. In the case of 
notes, the copy shows the letterhead, the date and, if signed, an 
indication of the signature or, if merely initialed, the initials which 
appear on the original. It is suggested that, in the case of a note 
from the mission to the foreign government, the copy for certification 
and transmission to the Department be made at the same time the 
original is prepared. If the copy is made at the same time, the 
certificate prescribed in 11 FAM 723.8 may state that the document is a 
true and correct copy of the signed original. If it is not possible to 
make a copy at the same time the original is prepared, the certificate 
indicates that the document is a true and correct copy of the copy on 
file in the mission. The word ``(Copy)'' is not placed on the document 
which is being certified; the word ``(Signed)'' is not placed before 
the indication of signatures. Moreover, a reference to the transmitting 
airgram, such as ``Enclosure 1 to Airgram No. 18 (ect.)'', is not 
placed on the certified document. The identification of such a document 
as an enclosure to an airgram may be typed on a separate slip of paper 
and attached to the document, but in such a manner that it may be 
easily removed without defacing the document.
11 FAM 724 Transmission of International Agreements other than Treaties 
           to Congress: Compliance with the Case-Zablocki Act
    All officers will be especially diligent in cooperating to assure 
compliance with Pub. L. 92-403 ``An Act to require that international 
agreements other than treaties, hereafter entered into by the United 
States, be transmitted to the Congress within sixty days after the 
execution thereof.'' That Act, popularly known as the Case-Zablocki 
Act, approved August 22, 1972 (86 Stat. 619; 1 U.S.C. 112b), provides 
as follows:
          The Secretary of State shall transmit to the Congress the 
        text of any international agreement other than a treaty, to 
        which the United States is a party as soon as practicable after 
        such agreement has entered into force with respect to the 
        United States but in no event later than sixty days thereafter. 
        However, any such agreement the immediate public disclosure of 
        which would in the opinion of the President, be prejudicial to 
        the national security of the United States shall not be so 
        transmitted to the Congress but shall be transmitted to the 
        Committee on Foreign Relations of the Senate and the Committee 
        on Foreign Affairs of the House of Representatives under an 
        appropriate injunction of secrecy to be removed only upon due 
        notice from the President.
 11 FAM 725 Publication of Treaties and other International Agreements 
                          of the United States
    The attention of all officers is directed to the requirements of 
the Act of September 23, 1950 (64 Stat. 979; 1 U.S.C. 112a), which 
provides as follows:
          The Secretary of State shall cause to be compiled, edited, 
        indexed, and published, beginning as of January 1,1950, a 
        compilation entitled ``United States Treaties and Other 
        International Agreements,'' which shall contain all treaties to 
        which the United States is a party that have been proclaimed 
        during each calendar year, and all international agreements 
        other than treaties to which the United States is a party that 
        have been signed, proclaimed, or with reference to which any 
        other final formality has been executed, during each calendar 
        year. The said United States Treaties and Other International 
        Agreements shall be legal evidence of the treaties, 
        international agreements other than treaties, and proclamations 
        by the President of such treaties and agreements, therein 
        contained, in all the courts of the United States, the several 
        States, and the Territories and insular possessions of the 
        United States.
                   11 FAM 726 through 729 unassigned
                               11 FAM 730
           Guidelines for Concluding International Agreements
11 FAM 730.1 method of concluding bilateral and multilateral agreements
    An agreement may be concluded (entered into) by the process of 
bilateral negotiations which result either in the signing of a single 
instrument in duplicate or in exchange of diplomatic notes, or by the 
process of multilateral negotiations, usually at an international 
conference to which the governments concerned send official delegations 
for the purpose of formulating and signing an instrument of agreement.
             11 FAM 730.2 bilateral treaties and agreements
11 FAM 730.2-1 Negotiation and Background Assistance
    Whenever the negotiation of a new international agreement is under 
consideration, the Department office or the post having primary 
responsibility informs the Legal Adviser and may, if considered 
necessary, request background material and advice regarding relevant 
provisions in existing treaties and agreements, the general treaty 
relations of this Government with the government or governments 
concerned, and other pertinent information.
11 FAM 730.2-2 Role of Office of the Legal Adviser
    a. Legal Review of Draft Agreements.--As soon as tentative 
provisions for an agreement are considered or drafted, the Office of 
the Legal Adviser is requested to make available the services of an 
attorney-adviser to insure that the agreement is properly drafted and 
agreed policy is expressed clearly and fully. The Office of the Legal 
Adviser prepares a draft in the first instance upon the request of 
another office.
    b. Legal Clearance Required.--Any draft of a proposed treaty or 
agreement, or any outgoing correspondence regarding the negotiation, 
signature, and ratification or approval, as well as the existence, 
status, and application, of any international agreement to which the 
United States is or may become a party, is cleared with the Office of 
the Legal Adviser and with other appropriate bureaus or offices and, as 
appropriate, with any other agency concerned with the reply.
                11 FAM 730.3 instructions to negotiators
    When an agreement is to be concluded at a foreign capital, the 
Department designates the United States negotiator or negotiators, and 
the negotiator or negotiators are given appropriate instructions. If 
the agreement to be negotiated is a treaty which will be referred to 
the Senate, the Secretary of State may at some time prior to or during 
the negotiations issue or request the President to issue or request the 
President to issue a ``full power'' (see 11 FAM 732) constituting 
formal authorization for the United States negotiators to sign the 
agreement. Such a ``full power'' is not customary with respect to an 
international agreement other than a treaty. The receipt or possession 
of a ``full power'' is never to be considered as a final authorization 
to sign. That authorization is given by the Department by a written or 
telegraphic instruction, and no signature is affixed in the absence of 
such instruction. If the proposal for an agreement originates with the 
United States, the U.S. negotiators as a rule furnish a tentative draft 
of the proposed agreement for submission to the other government for 
its consideration. The negotiators submit to the Department any 
modification of the draft or any counterproposal made by the other 
government and await instructions from the Department. If the original 
proposal emanates from a foreign government, the mission forwards the 
proposal to the Department and awaits its instructions.
            11 FAM 730.4 preparation of texts for signature
    If an agreement is to be signed at a post abroad as a single 
instrument (in duplicate), the engrossing (preparation of the documents 
to be signed) is customarily done in the foreign ministry on paper 
supplied by it, along with a binding and ribbons to tie the pages in 
place. However, the mission may lend assistance if the foreign ministry 
so desires. There is no universal standard as to the kind or size of 
paper which must be used (each foreign ministry has its own ``treaty 
paper''), and the texts may be engrossed either by typing or by 
printing. For every bilateral agreement there must be two originals, 
one for each government. Each original must embody the full text of the 
agreement in all the languages in which the agreement is to be signed, 
and must be exactly the same as the other original subject only to the 
principle of the ``alternat.''
    In the case of an agreement effected by exchange of notes, the U.S. 
notes are prepared in English and in accordance with 5 FAM 220 through 
224 and the rules prescribed in 5 FAH-1, Correspondence Handbook. The 
note of the foreign government is prepared in accordance with the style 
of the foreign ministry and usually in the language of that country. 
Whenever practicable, arrangements are made for the notes to bear the 
same date.
    11 FAM 730.5 arrangement of texts and principle of the alternat
11 FAM 730.5-1 Arrangement of Texts
    When English and a language other than English are both used, the 
texts in the two languages are placed (a) in ``tandem'' fashion, that 
is, with one text following the other (the tandem procedure is the most 
widely used as it is the most expeditious), or (b) in parallel, 
vertical columns on the same page, the columns being approximately of 
equal width, or (c) on opposite facing pages of the document the entire 
width of the type or printed space on the page.
    If the two languages are placed ``tandem'' fashion, the English 
text is placed first in the U.S. original, and conversely in the 
foreign government's original.
    If parallel columns are used, the English text is placed in the 
left column of each page in the original to be retained by the United 
States, and the foreign text appears in the right column. In the other 
original, to be retained by the foreign government, the foreign text 
appears in the left column, and the English text in the right column.
    If the two languages are placed on opposite facing pages of the 
document, the English text occupies the left-hand page and the foreign 
text the right-hand page in the U.S. original, and conversely in the 
foreign government's original. If either the ``tandem'' or the 
``opposite facing page'' style is used, the concluding part (usually 
beginning ``IN WITNESS WHEREOF,'' ``DONE,'' etc.) should appear 
engrossed in parallel columns on the page on which the signatures will 
appear, so that only one set of signatures is required for each 
separately bound document (see 11 FAM 730 Exhibit 730.5-1, page 1). If 
parallel signature columns are not feasible, the concluding paragraphs 
can be placed ``tandem'' fashion on the page on which the signatures 
appear (see 11 FAM 730 Exhibit 730.5-1, page 2).
    If an oriental text is one which, from the occidental viewpoint, 
reads from back to front, it may be possible to join the two texts in a 
single binding so that the signatures appear, roughly speaking, in the 
center of the document. If this is not feasible, the negotiators should 
seek instructions from the Department.
11 FAM 730.5-2 Arrangement of Names and Signatures; Use of Titles
    In the original to be retained by the United States, the United 
States is named first in both the English and foreign texts, wherever 
the names of the countries occur together conjunctively or 
disjunctively; and the signature of the plenipotentiary of the United 
States appears on the left and that of the foreign plenipotentiary on 
the right of the original to be retained by the United States. 
Conversely, throughout both of the language texts of the original to be 
retained by the foreign government, that government is named first and 
its plenipotentiary's signature appears to the left of the signature of 
the U.S. plenipotentiary. The position of full sentences, paragraphs, 
or subparagraphs in the text is never transposed in the alternat 
procedure.
    The general practice and preference of the Department of State is 
not to use titles along with signatures, especially where the President 
or the Secretary of State signs. However, if preferred by the other 
party or parties concerned, titles may be typed BELOW where each will 
sign (with ample space allowed for the signature).
                     11 FAM 731 Conformity of Texts
    After the documents have been engrossed on the basis of agreed 
texts, and before the signing of the agreement, the negotiators or 
other responsible officers on each side make sure that the texts in 
both originals of the engrossed agreement are in exact conformity with 
each other and with the texts in the drafts agreed to, and especially 
that where a foreign language is included that text and the English 
text are in conformity in all substantive respects. Prior to engrossing 
it should have been determined that the foreign-language text is 
essentially (that is, as a matter of substance) in accord with the 
English text, and that it has received the clearance of the Department 
as required in 11 FAM 722.6.
            11 FAM 732 Exchange or Exhibition of Full Powers
    Each representative who is to sign a treaty is furnished a full 
power signed by the head of state, head of government, or minister for 
foreign affairs. More than one representative should be named in a 
single instrument of full power. On occasion, formal full powers may be 
(but customarily are NOT in U.S. practice) issued for the signing of 
certain agreements other than treaties. When issued, the full power is 
formal evidence of the authority of the representative to sign on 
behalf of the representative's government. It names the representative, 
with title, and gives a clear indication of the particular instrument 
of agreement which the representative is entitled to sign. Full powers 
for representatives of the United States are prepared by the Office of 
the Assistant Legal Adviser for Treaty Affairs, and generally are 
signed by the Secretary or Acting Secretary of State. On occasion, full 
powers are signed by the President.
    If the agreement itself requires the exchange of full powers, they 
are exchanged. If not, they may be either exchanged or exhibited by the 
representatives on the occasion of signing the agreement, as may be 
preferred by the foreign representative. If a full power is required, 
the U.S. representative shall NOT proceed to sign the treaty until the 
full power is in hand, or the Department specially instructs otherwise. 
If exchanged, the original full power of the foreign representative is 
forwarded to the Department with the U.S. original of the signed 
agreement. If the representatives retain the original of the respective 
full powers, each representative should supply the other representative 
with an offset copy or a certified copy of the full power.
                    11 FAM 733 Signature and Sealing
    When the engrossing of a treaty or other international agreement 
which is to be signed as a single instrument has been completed, 
mutually convenient arrangements for its signature are made by the host 
government. In the case of treaties, the signatures of the 
representatives may be accompanied by their respective seals, ribbons 
being fastened in the seals and binding the documents. The same 
procedure may be followed for other agreements signed as single 
instruments. It is not essential that seals be affixed, unless the 
agreement specifically so requires (the preference of the Department of 
State is NOT to use seals). The representative's personal seal, if 
available, is used when seals accompany the signatures, except that if 
the other government concerned prefers official seals, the seal of the 
mission may be used.
    (NOTE. A personal seal may consist of a signet ring with initial(s) 
or family crest, written initials, etc.)
                  11 FAM 734 Exchange of Ratifications
                11 FAM 734.1 time and place of exchange
    It is customary for a treaty to contain a simple provision to the 
effect that the instruments of ratification shall be exchanged as soon 
as possible at a designated capital, and that the treaty shall enter 
into force on the date of such exchange or at the expiration of a 
specified number of days or months following the date of exchange. (As 
all treaties signed on the part of the United States are subject to 
ratification by and with the advice and consent of the Senate, and as 
the time required for action on any particular treaty cannot be 
foreseen, it is preferable that provision is made in the treaty that 
the instruments of ratification are to be exchanged ``as soon as 
possible'' rather than within a specified period.)
                  11 FAM 734.2 effecting the exchange
    In exchanging instruments of ratification the representative of the 
United States hands to the representative of the foreign government a 
duplicate original of the President's instrument of ratification. In 
return, the representative of the foreign government hands to the 
representative of the United States the instrument of ratification 
executed by the head or the chief executive of the foreign government. 
A protocol, sometimes called ``Protocol of Exchange of Ratifications'' 
or proces-verbal, attesting the exchange is signed by the two 
representatives when the exchange is made. No full power is required 
for this purpose. The protocol of exchange is signed in duplicate 
originals, one for each government, and the principle of the alternat 
is observed as in the treaty. Before making the exchange and signing 
the proces-verbal or protocol of exchange the diplomatic representative 
of the United States must be satisfied that the ratification of the 
foreign government is an unqualified ratification, or subject only to 
such reservations or understandings as have been agreed to by the two 
governments.
             11 FAM 734.3 notification of date of exchange
    In all cases, but particularly in those in which the treaty enters 
into force on the day of the exchange, it is essential that the mission 
notify the Department by telegram when arrangements have been completed 
for the exchange, and also when the exchange actually takes place. By 
the first pouch after the exchange takes place, if possible, the 
mission forwards to the Department the instrument of ratification of 
the foreign government and the U.S. Government's original of the signed 
proces-verbal or protocol of exchange. The Department then will take 
such steps as may be necessary to have the proclamation of the treaty 
executed by the President.
                  [11 FAM 730 exhibit 730.5-1 omitted]
                   11 FAM 735 through 739 unassigned
                               11 FAM 740
                  Multilateral Treaties and Agreements
                    11 FAM 740.1 general procedures
    The procedures for the making of multilateral agreements are in 
many respects the same as those for the making of bilateral agreements; 
for example, the general requirements in regard to full powers, 
ratification, proclamation, and publication. This subchapter covers 
those procedures which are at variance with bilateral procedures.
                        11 FAM 740.2 negotiation
11 FAM 740.2-1 Function of International Conference
    The international conference is the device usually employed for the 
negotiation of multilateral agreements. The greater the number of 
countries involved, the greater the necessity for such a conference. If 
only three or four countries are involved, it may be convenient to 
carry on the preliminary negotiations through correspondence and have a 
joint meeting of plenipotentiaries to complete the negotiations and to 
sign the document.
11 FAM 740.2-2 Invitation
    Traditionally, the international conference was convened by one 
government's extending to other interested governments an invitation 
(acceptance usually assured beforehand) to participate, the host 
government bearing most, if not all, of the expense incident to the 
physical aspects of the conference. This is still often the practice, 
but increasing numbers of conferences have been convened under the 
auspices, and at the call of international organizations.
11 FAM 740.2-3 Statement of Purpose
    When a call is made or invitations are extended for a conference 
for the formulation of a multilateral agreement, it is customary for a 
precise statement of purpose to accompany the call or the invitations. 
Sometimes, the invitation is also accompanied by a draft agreement to 
be used as a basis for negotiations. If the conference is called under 
the auspices of an international organization, the precise statement of 
purpose or the draft agreement may be prepared in preliminary sessions 
of the organization or by the secretariat of the organization.
11 FAM 740.2-4 Instructions to Negotiators
    The U.S. delegation to a conference may be comprised of one or more 
representatives. As a rule, the U.S. delegation is furnished written 
instructions by the Department prior to the conference in the form of a 
position paper for the U.S. delegation cleared with the Secretary or an 
officer specifically authorized by him or her and other appropriate 
Department officers for that purpose, under the procedures described in 
11 FAM 722.3. The Office of the Legal Adviser in all instances reviews 
drafts of international conventions to be considered in meetings of an 
international organization of which the United States is a member; when 
necessary, it also provides legal assistance at international 
conferences and meetings.
11 FAM 740.2-5 Final Acts of Conference
    The ``Final Act'' of a conference must not contain international 
commitments. A Final Act must be limited to such matters as a statement 
or summary of the proceedings of the conference, the names of the 
states that participated, the organization of the conference and the 
committees established, resolutions adopted, the drafts of 
international agreements formulated for consideration by governments 
concerned, and the like. If an international agreement is to be opened 
for signature at the close of the conference, a text thereof may be 
annexed to the Final Act but must not be incorporated in the body 
thereof; the text to be signed must be prepared and bound separately 
for that purpose. Where a Final Act appears to embody international 
commitments, the U.S. representative reports the same to the Department 
and awaits specific instruments before taking any further action.
               11 FAM 741 Official and Working Languages
            a. General Procedures
    The working languages of the conference and the official languages 
of the conference documents are determined by the conference. A 
conference does not necessarily adopt all of the same languages for 
both purposes. It is customary and preferable for all the officials' 
languages in which the final document is prepared for signature to be 
designated as having equal authenticity. It is possible, however, for 
the conference to determine, because of special circumstances, that in 
the event of dispute one of the languages is to prevail and to include 
in the text of the agreement a provision to that effect. Before a U.S. 
delegation concurs in any such proposal, it must request instructions 
from the Department.
            b. English Language Text
    Negotiators will use every practicable effort to assure that an 
English-language text is part of the authentic text of any multilateral 
treaty negotiated for the United States. Where any question exists on 
this subject, the negotiators should seek further instructions.
                         11 FAM 742 Engrossing
            11 FAM 742.1 language or languages used in texts
    The multilateral agreement drawn up at an international conference 
is engrossed for signature in the official language or language adopted 
by the conference. (See 11 FAM 741.) The engrossing ordinarily will be 
done by the conference secretariat.
                 11 FAM 742.2 principle of the alternat
    The principle of the alternat (see 11 FAM 730.5) does not apply in 
the case of a multilateral agreement, except in the remote case when an 
agreement between three or four governments is prepared for signature 
in the language of all the signatories and each of those governments is 
to receive a signed original of the agreement. Customarily, a 
multilateral agreement is prepared for signature in a single original, 
comprising all the official languages. That original is placed in the 
custody of a depositary (either a government or an international 
organization) which furnishes certified copies to all governments 
concerned.
11 FAM 742.2-1 Arrangement of Texts
    The arrangement of multilateral agreement texts varies, depending 
largely on the number of languages used. As in the case of bilateral 
agreements, however, the basic alternatives in the case of multilateral 
agreements are ``tandem,'' parallel columns, or facing pages, as 
follows:
            a. Tandem
    If an agreement is to be signed in two languages, and especially if 
signed in three or more languages, the texts may be arranged in tandem 
style, that is, one complete text following the other. This allows 
readily for any number of official texts; the tandem style precedent of 
the Charter of the United Nations is followed for the preparation of 
agreements formulated under the auspices of the United Nations. It is 
desirable, whenever practicable, that the concluding part of each text 
be placed with the concluding part of each of the other texts in 
parallel columns on the page on which the first of the signatures 
appears, although the tandem arrangement described at the end of 11 FAM 
742.2-1c (below) can be used.
            b. Parallel Columns
    If an agreement is to be signed in only two languages, the 
traditionally preferred method of arrangement of the texts has been 
parallel, vertical columns. This method may be used also if only three 
languages are used, but the three columns are necessarily so narrow 
that the method has been rarely used in such cases. When there are four 
official languages, however, it is possible to use the parallel column 
method by placing two of the language texts on a left-hand page and the 
other two language texts on the facing right-hand page; this method has 
been used often and to good advantage in various inter-American 
agreements with English, Spanish, French, and Portuguese. If any of the 
languages is oriental, the parallel column method may be inexpedient 
and one of the other methods may be necessary.
            c. Facing Pages
    If an agreement is to be signed in only two languages, and 
circumstances make it necessary or desirable, the facing page method 
may be used for engrossing the texts for signature, so that one of the 
language texts will be on a left-hand page and the other will be on the 
facing right-hand page. When this method is used, it is desirable that 
at least the concluding part (usually beginning ``IN WITNESS WHEREOF,'' 
``DONE,'' etc.) be engrossed in parallel columns on the page at the end 
of the texts in both languages so that only one set of signatures is 
required. If parallel columns are not feasible, the concluding 
paragraphs can be placed tandem fashion (one language text after 
another) on the page at the end of the texts in both languages.
11 FAM 742.2-2 Arrangement of Names and Signatures
    The arrangement of names and signatures, although it may seem a 
minor matter, sometimes presents difficulties in the case of 
multilateral agreements. There may be variations of arrangements, 
depending on particular factors, but the arrangement most generally 
used is alphabetical according to the names of the countries concerned. 
An alphabetical listing, however, presents the further question, even 
when there are only two languages, of what language is to be used in 
determining the arrangement. It is a common practice to use the 
language of the host government or for an agreement formulated under 
the auspices of an international organization, to follow the precedents 
established by that organization. It is possible, in the event that 
agreement could not be reached regarding the arrangement of names of 
countries and signatures of plenipotentiaries, to have a drawing of 
lots, a device seldom used. In any event, the question is one to be 
determined by the conference.
                    11 FAM 742.3 conformity of texts
    It is the primary responsibility of the delegations, acting in 
conference, to determine the conformity of the agreement texts which 
are to be signed. However, the conference secretariat has a 
responsibility for checking the texts carefully to insure that, when 
put in final form for signature, the texts are in essential conformity.
                         11 FAM 743 Full Powers
    In the case of a multilateral agreement drawn up at an 
international conference, this Government customarily (almost 
invariably, in the case of a treaty) issues to one or more of its 
representatives at the conference an instrument of full power 
authorizing signature of the agreement on behalf of the United States. 
In some instances, issuance of the full power is deferred until it is 
relatively certain that the agreement formulated is to be signed for 
the United States. (See 11 FAM 732.) Ordinarily, that full power is 
presented by the representatives to the secretary general of the 
conference upon arrival of the delegation at the conference site. It 
may be submitted in advance of arrival, but usually that is not 
necessary. When the conference has formally convened, it usually 
appoints a credentials committee, to which all full powers and other 
evidence of authorization are submitted for examination. The full 
powers and related documents are retained by the credentials committee 
or the secretary general until the close of the conference. At the 
close of the conference, the full powers, related documents, and the 
signed original of the agreement are turned over to the government or 
the international organization designated in the agreement as the 
depositary authority, to be placed in its archives.
                    11 FAM 744 Signature and Sealing
    See also 11 FAM 733.
                         11 FAM 744.1 signature
    Most multilateral agreements are signed. Some, however, are adopted 
by a conference or organization after which governments become parties 
by adherence, accession, acceptance, or some other method not requiring 
signature (for example, conventions drawn up and adopted at sessions of 
the International Labor Organization). Procedures for the deposit of an 
instrument of adherence, accession, or acceptance are similar to 
procedures for the deposit of instruments of ratification. In some 
cases, accession or approval can be accomplished by formal notice 
through diplomatic channels.
                           11 FAM 744.2 seals
    Multilateral treaties do not usually provide for the use of seals 
along with the signatures of representatives. The large number of 
signatures would make the use of seals difficult and cumbersome.
        11 FAM 745 Disposition of Final Documents of Conference
    At the close of a conference, the remaining supply of working 
documents (for example, records of committee meetings, verbatim 
minutes, etc.) usually is placed in the custody of the host government 
or the organization which called the conference for appropriate 
disposition. It is not proper for definitive commitments constituting 
part of the agreement to be embodied in such working documents. 
Definitive commitments must be incorporated only in a final document to 
be signed or adopted as an international agreement. The final documents 
of the conference may include a Final Act (see 11 FAM 740.2-5) and 
separately, the text(s) of agreement(s). The practice of signing a 
Final Act is still followed in many cases. In any event, any agreement 
formulated at the conference must be engrossed as a separate document 
and signed or adopted. The signed or adopted originals of the final 
documents of the conference are turned over to the government or 
international organization designated in such documents as depositary. 
If the conference is not held under the auspices of an organization, it 
is customary for the host government to be designated depositary, but 
it might be appropriate, even in such case, to name an organization, 
such as the United Nations, as depositary. The decision is made by the 
conference, with the concurrence of the government or international 
organization concerned.
                11 FAM 746 Procedure Following Signature
              11 FAM 746.1 understandings or reservations
    If it is necessary to inform other governments concerned, and 
perhaps obtain their consent, with respect to an understanding, 
interpretation, or reservation included by the Senate in its resolution 
of advice and consent, this Government communicates with the 
depositary, which then carries on the necessary correspondence with the 
other governments concerned.
                  11 FAM 746.2 deposit of ratification
    When the depositary for a multilateral agreement is a foreign 
government or an international organization, the U.S. instrument of 
ratification (or adherence, accession, acceptance, etc.) is sent by the 
Office of Assistant Legal Adviser for Treaty Affairs to the appropriate 
Foreign Service mission or to the U.S. representative to the 
organization if there is a permanent representative. The mission or the 
representative deposits it with the depositary authority in accordance 
with the terms of the accompanying instruction from the Department 
concerning the time of deposit. When this Government is depositary for 
a multilateral agreement, posts are not authorized to accept 
instruments of ratification of foreign governments; that is, the 
foreign government cannot deposit its instrument with the post. If a 
post is requested to transmit an instrument of ratification to the 
Department, it must make clear to the foreign government that the post 
is acting only as a transmitting agent and that the ratification cannot 
be considered as accepted for deposit until received and examined by 
the Department.
                       11 FAM 746.3 registration
    See also 11 FAM 750.3-3.
    It is generally recognized that the depositary for a multilateral 
agreement has a primary responsibility for its registration. Normally, 
the depositary has custody not only of the original document of 
agreement but also of instruments of ratification and other formal 
documents. Consequently, the depositary is the most authoritative 
source of information and documentation.
                   11 FAM 747 through 749 unassigned
                               11 FAM 750
   Responsibilities of the Assistant Legal Adviser for Treaty Affairs
  11 FAM 750.1 preparation of documents, ceremonies, and instructions
    Carrying out and providing advice and assistance respecting the 
provisions of this chapter are the responsibility of the Assistant 
Legal Adviser for Treaty Affairs, who:
    a. Reviews all drafts of international agreements, proposals by 
other governments or international organizations, instructions and 
position papers, all Circular 175 requests, and accompanying 
memorandums of law;
    b. Makes all arrangements and/or supervises ceremonies at 
Washington for the signature of treaties or other international 
agreements; and supervises the preparation of texts of treaties and 
other agreements to be signed at Washington;
    c. Supervises preparation of the Secretary of State's reports to 
the President, and the President's messages to the Senate for 
transmission of treaties for advice and consent to ratification;
    d. Prepares full powers, protocols of exchange, instruments of 
ratification or adherence, instruments or notifications of acceptance 
or approval, termination notices, and proclamations with respect to 
treaties or other international agreements;
    e. Makes arrangements for the exchange or deposit of instruments of 
ratification, deposit of instruments of adherence, the receipt or 
deposit of instruments or notifications of acceptance or approval, and 
termination notices with respect to treaties or other international 
agreements;
    f. Prepares instructions to posts abroad and notes to foreign 
diplomatic missions at Washington respecting matters stated in 
paragraph e; and
    g. Takes all measures required for the transmission to the Congress 
of all international agreements other than treaties, as required by the 
Case-Zablocki Act, 1 U.S.C. 112b (see 11 FAM 724), and the publication 
and registration of treaties and other international agreements to 
which the United States is a party (see 11 FAM 725 and 11 FAM 750.3-3).
            11 FAM 750.2 engrossing documents for signature
    After the text of a treaty or other agreement is approved in 
writing in accordance with 11 FAM 722.7, the document is normally 
engrossed at the capital at which it is to be signed.
    Adequate time (normally 7 business days) is allowed for the 
engrossing (typing on treaty paper), comparing, etc., of the treaty or 
other agreement to be signed, in order to assure sufficient time for 
the preparation of accurate texts in duplicate for signature, 
including, in the case of documents to be signed in a foreign language, 
sufficient time for the Language Services Division to prepare any 
translations required, check any existing foreign-language draft, and 
check the engrossed foreign-language text. If any question arises as to 
the time necessary to complete engrossing at Washington, the matter 
will be referred to the Assistant Legal Adviser for Treaty Affairs.
               11 FAM 750.3 publication and registration
11 FAM 750.3-1 Publication of Texts
    After the necessary action has been taken to bring into force the 
treaty or other international agreement concluded by the United States, 
it is published promptly in the Treaties and Other International Acts 
Series issued by the Department. After publication in that series, the 
text of the treaty or other agreement is printed in the annual 
volume(s) (which may consist of two or more bindings) of United States 
Treaties and Other International Agreements, as required by law (see 11 
FAM 725). Treaties and other agreements concluded prior to January 1, 
1950, were published in the United States Statutes at Large and for 
easy reference were reprinted in Bevans, Treaties and Other 
International Agreements of the United States of America, 1776-1949.
11 FAM 750.3-2 Responsibility for Other Treaty Publications
    The Office of the Assistant Legal Adviser for Treaty Affairs 
prepares and maintains the annual publication, Treaties in Force, an 
authoritative guide to the text and status of treaties and other 
international agreements currently in force for the United States. It 
also compiles and has published, in addition to the text referred to in 
11 FAM 750.3-1, other volumes containing texts of treaties and other 
agreements as required or authorized by law. The ``Treaty Information'' 
section of the Department of State Bulletin is compiled by that office.
11 FAM 750.3-3 Registration
    Article 102 of the United Nations Charter requires that every 
treaty and every international agreement entered into by a member of 
the United Nations be registered, as soon as possible, with the 
Secretariat and published by it. Article 83 of the Chicago Aviation 
Convention of 1944 requires registration of aviation agreements with 
the Council of the International Civil Aviation Organization.
                11 FAM 750.4 united states as depositary
    a. Inquiries from foreign diplomatic missions at Washington and 
from U.S. diplomatic missions abroad with respect to the preparation or 
deposit of instruments relating to any multilateral agreement of which 
the United States is despositary are referred to the Assistant Legal 
Adviser for Treaty Affairs. That officer is to be notified immediately 
of the receipt of any such document anywhere in the Department, 
inasmuch as a depositary is required to ascertain whether those 
documents are properly executed before accepting them for deposit, to 
keep accurate records regarding them, and to inform other governments 
concerned of the order and date of receipt of such documents.
    b. Before any arrangements are proposed or agreed to for the United 
States to serve as depositary for any international agreement, the 
views of the Assistant Legal Adviser for Treaty Affairs will be 
obtained.
            11 FAM 750.5 records and correspondence custody
    a. The Assistant Legal Adviser for Treaty Affairs compiles and 
maintains authoritative records regarding the negotiation, signature, 
transmission to the Senate, and ratification or approval, as well as 
the existence, status, and application, of all international agreements 
to which the United States is or may become a party and, so far as 
information is available, of agreements between other countries to 
which the United States is not a party. Inquiries on these subjects are 
addressed to, and outgoing communications cleared with, the Office of 
the Legal Adviser.
    b. To insure that the records regarding the matters described in 
this section are complete and up to date, it is important that all 
relevant papers be referred to the Office of the Legal Adviser.
    c. The Assistant Legal Adviser for Treaty Affairs is responsible 
for the custody of originals of bilateral agreements and certified 
copies of multilateral agreements pending entry into force and 
completion of manuscripts for publication. Following publication, such 
originals and certified copies are transferred to the National 
Archives. The Assistant Legal Adviser for Treaty Affairs retains 
custody of signed originals of multilateral agreements for which the 
United States is depositary, together with relevant instruments of 
ratification, adherence, acceptance, or approval, as long as those 
agreements remain active.
                   11 FAM 751 through 759 unassigned
                   11 FAM 760 through 790 unassigned


 APPENDIX 5.--THE VIENNA CONVENTION ON THE LAW OF TREATIES, SENATE EX. 
L, 92D CONGRESS 1ST SESSION, WITH LIST OF SIGNATURES, RATIFICATIONS AND 
              ACCESSIONS DEPOSITED AS OF DECEMBER 11, 2000

                              ----------                              

92d Congress 
 1st Session                     SENATE                       Executive
                                                                      L
_______________________________________________________________________

                                     


                VIENNA CONVENTION ON THE LAW OF TREATIES

                               __________

                                MESSAGE

                                  FROM

                   THE PRESIDENT OF THE UNITED STATES

                              TRANSMITTING

                  THE VIENNA CONVENTION ON THE LAW OF
                 TREATIES SIGNED FOR THE UNITED STATES
                           ON APRIL 24, 1970

[GRAPHIC] [TIFF OMITTED] TONGRESS.#13


  November 22, 1971.--Convention was read the first time and, together
       with the message and accompanying papers, was referred to
           the Committee on Foreign Relations and ordered to
                    be printed for use of the Senate
                         LETTER OF TRANSMITTAL

                               __________
                                The White House, November 22, 1971.

To the Senate of the United States:

    I am transmitting herewith, for the advice and consent of the 
Senate to ratification, the Vienna Convention on the Law of Treaties 
signed for the United States on April 24, 1970. The Convention is the 
outcome of many years of careful preparatory work by the International 
Law Commission, followed by a two-session conference of 110 nations 
convened under United Nations auspices in 1968 and 1969. The conference 
was the sixth in a series called by the General Assembly of the United 
Nations for the purpose of encouraging the progressive development and 
codification of international law.
    The growing importance of treaties in the orderly conduct of 
international relations had made increasingly evident the need for 
clear, well-defined, and readily ascertainable rules of international 
law applicable to treaties. I believe that the codification of treaty 
law formulated by representatives of the international community and 
embodied in the Vienna Convention meets this need.
    The international community as a whole will surely benefit from the 
adoption of uniform rules on such subjects as the conclusion and entry 
into force of treaties, their interpretation and application, and other 
technical matters. Even more significant, however, are the orderly 
procedures of the Convention for dealing with needed adjustments and 
changes in treaties, along with its strong reaffirmation of the basic 
principle pacta sunt servanda--the rule that treaties are binding on 
the parties and must be performed in good faith. The provisions on 
judicial settlement, arbitration and conciliation, including the 
possibility that a dispute concerning a peremptory norm of 
international law can be referred to the International Court of 
Justice, should do much to enhance the stability of treaty 
relationships throughout the world.
    I am enclosing the report of the Secretary of State, describing the 
provisions of the Convention in detail.
    The Vienna Convention can be an important tool in the development 
of international law. I am pleased to note that it has been endorsed by 
the House of Delegates of the American Bar Association and I urge the 
Senate to give its advice and consent to ratification.
                                                     Richard Nixon.
    (Enclosures: (1) Report of the Secretary of State. (2) Copy of the 
Convention.)

                          LETTER OF SUBMITTAL

                               __________
                                       Department of State,
                                      Washington, October 18, 1971.
The President,
The White House.

    The President: I have the honor to submit to you the Vienna 
Convention on the Law of Treaties, adopted on May 23, 1969 by the 
United Nations Conference on the Law of Treaties, and signed for the 
United States on April 24, 1970. I recommend that you transmit it to 
the Senate for advice and consent to ratification.
    The Convention sets forth a generally agreed body of rules to 
govern all aspects of treaty making and treaty observance. It is the 
product of two sessions of a 110-nation Conference on the Law of 
Treaties convened in Vienna under United Nations auspices from March 21 
to May 24, 1968 and from April 9 to May 23, 1969.
    The Treaties Conference took as the basis of its work draft 
articles drawn up by the International Law Commission in the course of 
eighteen years of work. At its first session in 1949 the Commission had 
selected the law of treaties as a priority topic for codification. 
Growing support for a written code of international treaty law came not 
only from newly independent States that wished to participate in such 
an endeavor, but from many older States that favored clarification and 
modernization of the law of treaties. As a result the General Assembly 
of the United Nations in 1966 unanimously adopted resolution 2166 (XXI) 
convening the Law of Treaties Conference.
    The Treaties Convention which emerged from the Vienna Conference is 
an expertly designed formulation of contemporary treaty law and should 
contribute importantly to the stability of treaty relationships. 
Although not yet in force, the Convention is already generally 
recognized as the authoritative guide to current treaty law and 
practice.
    The Convention sets forth rules on such subjects as conclusion and 
entry into force of treaties, the observance, application, and 
interpretation of treaties, and depositary procedures. More 
importantly, it contains impartial procedures for dealing with disputes 
arising out of assertions of invalidity, termination and suspension of 
the operation of treaties, thus realizing a basic United States 
objective. The convention consists of eight parts. Procedures for 
handling most important disputes are contained in an Annex. The major 
provisions of the Convention are as follows:
                          PART I--INTRODUCTION
    The Convention applies to treaties between States (Article 1) but 
only to treaties concluded after the entry into force of the Convention 
with regard to such States (Article 4).
    ``Treaty'' is defined as an international agreement concluded 
between States in written form and governed by international law, 
whether embodied in a single instrument or in two or more related 
instruments and whatever its particular designation (Article 2). Thus 
it applies not only to formal treaties but to agreements in simplified 
form, such as exchanges of notes. Article 2 also defines other terms 
used in the Convention, but specifies that the Convention's use of 
terms is ``without prejudice to the use of those terms or to the 
meanings which may be given to them in the internal law of any State.''
    Although the Convention does not apply to unwritten agreements or 
to agreements concluded by or with international organizations, it 
asserts that the legal force of such other agreements or the 
application to them of any of the rules of international law to which 
they are subject independently of the Convention is not affected 
(Article 3).
    The non-retroactivity feature (Article 4) is of substantial 
importance because it avoids the possibility of reopening old 
international disputes. This is especially true with regard to long-
standing boundary disputes.
          PART II--CONCLUSION AND ENTRY INTO FORCE OF TREATIES
    The rules in this part are primarily technical. Section 1 relates 
to such matters as Full Powers or other evidence of authority; adoption 
and authentication of texts; and the means of expressing consent to be 
bound by a treaty (Articles 7-17).
    Article 18 sets forth rules governing the obligation of States not 
to defeat the object and purpose of a treaty prior to its entry into 
force. That obligation is limited to (a) States that have signed a 
treaty or exchanged ad referendum instruments constituting a treaty, 
until such times as they make clear their intention not to become a 
party, and (b) States that have expressed consent to be bound, pending 
entry into force and provided such entry into force is not unduly 
delayed. This rule is widely recognized in customary international law.
    Part 2 of Section II sets forth the rules on reservations to 
treaties (Articles 19-23). The articles reflect flexible current treaty 
practice with regard to multilateral treaties as generally followed 
since World War II. The earlier traditional rule on reservations had 
been that in order for a State to become party to a multilateral treaty 
with a reservation the unanimous consent of the other parties was 
required. That rule has given way in practice to a more flexible 
approach, particularly after the International Court of Justice in 1951 
handed down its Advisory Opinion on Reservations to the Genocide 
Convention. The Court's opinion in the case stated, ``The reserving 
State can be regarded as being a party to the Convention if the 
reservation is compatible with the object and purpose of the 
Convention.'' The compatibility rule has been incorporated in Article 
19 of the Convention. It applies in those cases where the reservation 
is not expressly excluded by the terms of the treaty.
    The right of other States to object to a reservation and to refuse 
treaty relations with the reserving State is maintained in Article 20. 
That article also provides the practical rule that a reservation is 
considered to have been accepted by a State that fails to object either 
within twelve months after being notified thereof or by the date on 
which it expresses its own consent to be bound, whichever is later.
    Section 3 of Part II governs entry into force of treaties and 
provides for their provisional application, pending entry into force, 
if such application has been agreed.
    PART III--OBSERVANCE, APPLICATION AND INTERPRETATION OF TREATIES
    The articles in Section 1 relating to observance of treaties are of 
cardinal importance. The foundation upon which the treaty structure is 
based is the principle pacta sunt servanda, expressed in Article 26 as 
follows:
          ``Every treaty in force is binding upon the parties to it and 
        must be performed by them in good faith.''
    The most significant action of the Law of Treaties Conference with 
respect to this part was the defeat of an attempt by some States to 
weaken the article by use of such expression as ``Every valid treaty'' 
or ``Treaties which have been regularly concluded.'' Phrases such as 
these might have encouraged States to assert a right on non-performance 
or termination before any claim of invalidity had been established. The 
article was adopted in the twelfth plenary meeting without a dissenting 
vote.
    Article 27 on internal law and observance of treaties restates the 
long-standing principle of customary international law that a party may 
not invoke the provisions of its internal law as justification for its 
failure to perform a treaty. The rule is consistent with United States 
practice over many years in declining to accept provisions of internal 
law as justifying nonperformance by a State of its treaty obligations 
to the United States. At the same time the article does not change the 
way in which the effect of a treaty within the framework of domestic 
law is determined. In explaining its vote in favor of Article 27, the 
U.S. Delegation observed:
          ``There is a hierarchy of differing legal rules in the 
        internal legislation of most States. Constitutional provisions 
        are very generally given primacy. Statutes, resolutions, and 
        administrative provisions, all of which may be authoritative, 
        may have different weights. Treaty provisions, when viewed as 
        internal law, necessarily have to be fitted into that 
        hierarchy.
          ``Each State is entitled to determine which legal formulation 
        has greater internal authority in case of conflict among 
        internal enactments. Article 27 in no way abridges that right . 
        . .''
    The articles of Section 2 contain rules on the non-retroactivity of 
treaties, their territorial scope and the difficult problem of 
application of successive treaties dealing with the same subject 
matter. Article 30 lays down a set of principles to determine 
priorities among inconsistent obligations. In essence it provides that 
(a) if a treaty states it is subject to another treaty, the other 
treaty governs; (b) as between parties to one treaty who becomes 
parties to a second, the second governs on any point where it is 
incompatible with the first; (c) if some parties to the first are not 
parties to the second, and vice versa, the first governs between a 
party to both and a party only to the first; the second governs between 
a party to both and a party only to the second.
    The articles of Section 3 on interpretation of treaties emphasize 
the importance of the text in the interpretative process. Article 31 
requires that a treaty ``be interpreted in good faith in accordance 
with the ordinary meaning to be given to the terms of the treaty in 
their context and in the light of its object and purpose.'' Context is 
narrowly defined as comprising, ``in addition to the text, including 
its preamble and annexes'', related agreements made by all the parties 
and instruments made by less than all the parties but accepted by all 
as related to the treaty. Elements extrinsic to the text which are to 
be taken into account are limited to subsequent agreements between the 
parties, subsequent practice establishing agreement, and relevant rules 
of international law.
    Article 32 allows recourse to ``supplementary means of 
interpretation, including the preparatory work of the treaty and the 
circumstances of its conclusion, in order to confirm the meaning 
resulting from the application of Article 31, or to determine the 
meaning when the interpretation according to Article 31: (a) leaves the 
meaning ambiguous or obscure; or (b) leads to a result which is 
manifestly absurd or unreasonable.''
    Fice articles in Section 4 deals with treaties and third States. 
Article 34 sets forth the traditional rule that a treaty does not 
create either obligations or rights for a third State without its 
consent. Subsequent articles provide that a third State must expressly 
consent to treaties creating obligations for it, whereas it would be 
assumed to assent to a treaty giving it rights, unless the treaty 
otherwise provides. Article 37 provides for revocation or modification 
of obligations or rights of third States, and Article 38 prevents the 
preceding articles from barring a rule set forth in a treaty from 
becoming binding on a third States as a customary rule of international 
law.
            PART IV--AMENDMENT AND MODIFICATION OF TREATIES
    Articles 39-41 lay down rules for amending and modifying treaties. 
Article 40 provides needed clarification in the case of multilateral 
treaties. It safeguards the rights of parties to participate in the 
amending process by requiring notification to all parties of any 
proposed amendment and by specifying their right to participate in the 
decision to be taken on the proposal and in the negotiation and 
conclusion of any amendment. The right to become party to the new 
agreement is also extended to every State entitled to become a party to 
the treaty.
  PART V--INVALIDITY, TERMINATION AND SUSPENSION OF THE OPERATION OF 
                                TREATIES
    Part V sets forth the grounds on which a claim may legitimately be 
made that a treaty is invalid or subject to termination, denunciation, 
withdrawal, or suspension. It deals with such grounds as error, fraud, 
coercion, breach, impossibility of performance, fundamental change of 
circumstances, and conflict with a peremptory norm of international law 
( jus cogens).
    At the same time it contains a variety of safeguards to protect the 
stability of the treaty structure. Article 42 subjects all challenges 
of the continuing force of treaty obligations to the rules of the Law 
of Treaties Convention. The termination of a treaty, its denunciation 
or suspension, or the withdrawal of a party may take place only as a 
result of the application of the provisions of that treaty or the 
Convention. Article 43 specifies that a State that sheds a treaty 
obligation does not escape any obligation to which it is subject under 
international law independently of the treaty.
    Article 44 deals with separability with respect to certain grounds 
of invalidity where the ground relates solely to particular clauses and 
where certain criteria as to feasibility and equity are met. Included 
in such criteria, as a result of a United States proposal, is the 
requirement that ``continued performance of the remainder of the treaty 
would not be unjust.''
    Article 45 is a rule of ``good faith and fair dealing'' that will 
protect against ill-founded efforts to avoid meeting treaty 
obligations. A State may not claim that a treaty is invalid if, after 
becoming aware of the facts, it expressly agrees that the treaty is 
valid or is to remain in effect of if (and this would be the case 
arising most often) it is considered to have acquiesced, by reason of 
its conduct, in the validity of the treaty or its maintenance in force 
or effect.
    In dealing with the invalidity articles in Section 2 of Part V 
(articles 46-53), the chief concern of the United States Delegation was 
to assure that the grounds of invalidity were stated as precisely and 
objectively as possible and that there would be procedural or 
institutional mechanisms to guard against spurious claims of treaty 
invalidity.
    The first of the grounds for invalidity, the effect of a limitation 
of internal law upon the competence to conclude treaties, is stated in 
Article 46. It provides that a State may not invoke, as invalidating 
its consent to be bound, the fact that its consent has been expressed 
in violation of a provision of its internal law regarding competence to 
conclude treaties unless: (a) the violation was manifest, that is, 
``objectively evident to any State conducting itself in the matter in 
accordance with normal practice and in good faith''; and (b) it 
concerns a rule of the State's internal law of fundamental importance. 
At the plenary meeting at which the article was adopted without 
negative vote, the United States Delegation emphasized that it had 
supported the article on the basis that it deals solely with the 
conditions under which a State may invoke internal law on the 
international plane to invalidate its consent to be bound and that it 
in no way impinges on internal law regarding competence to conclude 
treaties insofar as domestic consequences are concerned.
    Article 52 states the principle that a treaty is void if its 
conclusion has been procured by the threat or use of force in violation 
of the principles of international law embodied in the United Nations 
Charter. A proposal by 19 States that would have amended the rule by 
defining force to include any ``economic or political pressure'' was 
withdrawn after strong opposition by the United States and other 
concerned powers. Instead, a declaration condemning the threat or use 
of pressure in any form by a State to coerce any other State to 
conclude a treaty was adopted by the Conference and annexed to the 
Final Act.
    Article 53 deals with treaties that conflict with a peremptory norm 
of international law, the jus cogens doctrine. In formulating this 
article, the International Law Commission started from the principle 
that there are rules of such fundamental character that no State has 
the right to set them aside by a treaty. This principle had previously 
been incorporated in Section 116 of the American Law Institute's 
Restatement of the Foreign Relations of the United States. Inclusion of 
the jus cogens principle in the Vienna Convention was almost 
universally supported, but there was considerable concern with the 
theoretical manner in which the norm was formulated. Through efforts by 
the United States and several others, the article was revised to 
include two important limitations. The first makes clear that in order 
for a treaty to be void under the article the peremptory norm violated 
must have existed at the time of the conclusion of the treaty. The 
second clarification requires a peremptory norm to be ``a norm accepted 
and recognized by the international community of states as a whole . . 
.''. Inclusion of the latter requirement resulted in broad 
acceptability of the article. Many delegations had expressed the view 
that a norm which had not achieved recognition by substantially all 
States ought not to serve as the basis for claiming a treaty is void. A 
related article (Article 64) provides that if a new peremptory norm 
emerges, an existing treaty in conflict with the norm becomes void and 
terminates.
    Section 3 of Part V is entitled Termination and Suspension of the 
Operation of Treaties. Articles 54, 55, 57, and 58 specify that various 
aspects of termination and suspension must be dealt with in conformity 
with the treaty or with the consent of all parties, or, if by agreement 
between certain of the parties, subject to the same limitations 
expressed in Article 41 on modification.
    Paragraph 1(b) of Article 56 permits denunciation of or withdrawal 
from a treaty which has no provision on the subject if such right ``may 
be implied by the nature of the treaty''. At the instance of the United 
States Delegation a clear legislative history was established that the 
procedures for settlement of disputes in Section 4 (articles 65-68) 
apply to notices of denunciation grounded upon Article 56.
    Article 60 recognizes the long-standing doctrine that a material 
breach of a treaty by one party may be invoked by the other party to 
terminate the treaty or to suspend the performance of its own 
obligations under the treaty.
    Article 61 on supervening impossibility of performance contains the 
reasonable rule that a party may invoke impossibility of performance as 
a ground for terminating or withdrawing from a treaty if an object 
indispensable for the execution of the treaty permanently disappears or 
is destroyed. A State may not, however, invoke impossibility of 
performance if it is the result of a breach by that State of an 
international obligation.
    Article 62, on fundamental change of circumstances, is a carefully 
phrased version of the doctrine of rebus sic stantibus which has been 
widely recognized by jurists as a ground which under certain conditions 
may be invoked for terminating or withdrawing from a treaty. An 
important feature is paragraph 2(a) which precludes invocation of the 
articles as a ground for terminating or withdrawing from a treaty. An 
important feature is paragraph 2(a) which precludes invocation of the 
articles as a ground for terminating or withdrawing from a treaty 
establishing a boundary.
    Article 63 makes clear that the severance of diplomatic or consular 
relations between parties to a treaty does not affect the legal 
relations established by the treaty except to the extent that the 
existence of diplomatic or consular relations is indispensable to 
applying the treaty.
    Section 4 of Part V contains articles on the procedure for invoking 
grounds for invalidity or termination of treaties and for judicial 
settlement, arbitration and conciliation. During the debates on the 
preceding articles on invalidity, suspension and termination one of the 
major concerns of the United States and certain other countries was the 
need to formulate adequate provisions for dealing with an assertion of 
the invalidity of a treaty or a claim of a right to unilateral 
termination or suspension.
    The International Law Commission had proposed a procedure for 
dealing with such assertion that would have required a State to notify 
the other parties of its claim, of the grounds therefor; and of the 
action to be taken. If no objection to the proposed action were made 
within three months, it could then be carried out. If objection were 
made, a solution was to be sought under the means indicated in Article 
33 of the United Nations Charter. In the final analysis Article 33 
merely provides that disputes should be settled by peaceful means of 
the parties' own choice. The proposed article thus left undecided the 
crucial question whether a party could go ahead and terminate a treaty 
if it did not agree with the other parties on a peaceful means of 
settlement or if the means selected failed to result in a settlement.
    States, such as the United States, that were fighting for the 
stability of the treaty structure made clear that the Convention would 
be unacceptable unless some form of impartial disputes-settlement 
procedure was incorporated into it. The basis opposition to any 
meaningful form of disputes settlement was organized by the Communist 
bloc. The issue became the overriding one of the Conference. In the 
closing hours of the second session, the Conference succeeded in 
adopting a new article on the settlement of disputes, which should 
adequately protect United States treaty relations from unilateral 
claims of invalidity by our treaty partners and should contribute to 
the stability of treaty obligations generally.
    Under the new Article--Article 66 of the Convention--any party to a 
dispute arising under the jus cogens articles may invoke the 
jurisdiction of the International Court of Justice unless the parties 
agree to submit the dispute to arbitration. In any other dispute 
arising under Part V--such as claims of invalidity or termination based 
on error, fraud, breach, or changed circumstances--any party to the 
dispute may set in motion a conciliation procedure. That procedure, 
which is set forth in the Annex to the Convention, includes 
establishment in each case of a conciliation commission and submission 
by the commission of a report to the parties and to the Secretary-
General of the United Nations. The report may contain findings of fact 
and conclusions of law, as well as recommendations to the parties for 
settlement of the dispute, although it is not binding upon them. 
Paragraph 7 of the Annex provides that the expenses of the commission 
will be borne by the United Nations. The General Assembly of the United 
Nations on December 8, 1969 adopted Resolution 2534 (XXIV) approving 
the provision and requested the Secretary-General to take action 
accordingly.
    The provisions for the settlement of disputes meet the requirements 
of the United States. By contributing to the prompt resolution of 
disputes relating to validity of treaties they should go far in helping 
to maintain the stability of treaty relationships throughout the world. 
The provision for expenses is a desirable innovation and worthwhile 
investment, since the concern of many newly independent and small 
States with the cost of third-party settlement procedures had been a 
very real obstacle to their general acceptability.
    The Syrian Arab Republic, in depositing its accession to the 
Convention on October 2, 1970, made several reservations, the most 
serious of which was to reject the Annex on conciliation procedures. 
The United States Representative to the United Nations has notified the 
Secretary-General that the United States objects to that reservation 
and intends, at such time as it may become a party to the Convention, 
to reject treaty relations with the Syrian Arab Republic under all 
provisions in Part V with regard to which that State has rejected the 
obligatory conciliation procedures set forth in the Annex.
    The final section of Part V, Consequences of the Invalidity, 
Termination, or Suspension of the Operation of a Treaty, includes rules 
for the unwinding of treaties the invalidity or termination of which 
has been established under the Convention.
                   PART VI--MISCELLANEOUS PROVISIONS
    Article 73 excludes from the applicability of the Convention 
questions arising from State succession, State responsibility, or the 
outbreak of hostilities.
    Article 74 provides that severance or absence of diplomatic or 
consular relations between the States does not prevent the conclusion 
of treaties between them. The rule accords with modern treaty practice.
  PART VII--DEPOSITARIES, NOTIFICATIONS, CORRECTIONS AND REGISTRATION
    As the depositary of more international treaties than any other 
country, the United States had a substantial interest in the depositary 
articles and was able to achieve several worthwhile improvements in 
these technical articles. Article 76 makes clear the international 
character of the depositary function and the obligation to perform it 
impartially. Article 77 is a comprehensive catalog of depositary 
functions. Sensible rules for correction of errors are provided in 
Article 79.
                      PART VIII--FINAL PROVISIONS
    Included in Articles 81-85 are standard provisions on signature, 
ratification, accession, entry into force, and authentic texts. Entry 
into force requires deposit of thirty-five instruments of ratifications 
or accession. This is a larger number than required by many earlier 
treaties, but was considered appropriate because of the fundamental 
importance of the Convention on the Law of Treaties.
    The Vienna Convention on the Law of Treaties is a major achievement 
in the development and codification of international law. At the 
opening session of the conference in March 1968, the Legal Counsel of 
the United Nations, Constantin Stavropoulos, described it as the ``most 
important . . . and perhaps also the most difficult'' of the series of 
codification conferences called by the United Nations. By agreeing on 
uniform rules to govern State practice on a host of technical matters 
related to the negotiation, adoption, and execution of treaties, the 
Conference achieved one of its basic objectives. But the Convention on 
the Law of Treaties has a much larger significance. By codifying the 
doctrines of jus cogens and rebus sic stantibus, it provides a 
framework for necessary change. By reasserting the principle of pacta 
sunt servanda, long recognized as the keystone of the treaty structure, 
it strengthens the fabric of treaty relations. By requiring impartial 
procedures for settlement of disputes, it provides an essential element 
in minimizing unfounded claims that treaties should be terminated or 
suspended.
    The United States Delegation to the Vienna Conference was led by 
Richard D. Kearney, United States Member of the International Law 
Commission. Included on the Delegation at one or both sessions were 
John R. Stevenson, now Legal Adviser of the Department of State, and 
Charles I. Bevans, Assistant Legal Adviser for Treaty Affairs; Herbert 
W. Briggs, Professor of International Law, Cornell University; Myres 
McDougal, Professor of Law, Yale University; Joseph M. Sweeney, Dean, 
Law School, Tulane University; and Frank Wozencraft, former Assistant 
Attorney General, Department of Justice. Others on the United States 
Delegation were Jared Carter, Robert E. Dalton, Warren Hewitt, Bruce M. 
Lancaster, and Herbert K. Reis from the Department of State and Ernest 
C. Grigg III and Robert B. Rosenstock from the United States Mission to 
the United Nations.
    In preparing for the Conference the United States Government worked 
closely with the Study Group on the Law of Treaties established by the 
American Society of International Law in 1965. With Professor Oliver 
Lissitzyn of Columbia University as chairman, this group of eminent 
international lawyers met regularly with representatives of the 
Departments of States and Justice.
    The Study Group also joined forces with the Special Committee on 
Treaty Law of the Section of International and Comparative Law of the 
American Bar Association, of which Eberhard Deutsch is chairman. The 
comprehensive knowledge, experience, and wisdom of the members of the 
academic and legal communities serving in these two groups were of 
incalculable assistance to the Delegation in the formulation of United 
States policy and planning for the Conference. The House of Delegates 
of the American Bar Association in July 1971 approved a resolution 
recommending that the Convention be submitted to the Senate and that 
the Senate advise and consent to its ratification without reservations.
    I believe that the Convention on the Law of Treaties will be an 
important element in promoting the stability of treaty relationships. I 
hope that the United States will become a party in the near future.
    Respectfully submitted.
                                                 William P. Rogers.
    (Enclosure: Copy of the Vienna Convention on the Law of Treaties.)
                VIENNA CONVENTION ON THE LAW OF TREATIES
    The States Parties to the present Convention,

    Considering the fundamental role of treaties in the history of 
international relations,
    Recognizing the ever-increasing importance of treaties as a source 
of international law and as a means of developing peaceful co-operation 
among nations, whatever their constitutional and social systems,
    Noting that the principles of free consent and of good faith and 
the pacta sunt servanda rule are universally recognized,
    Affirming that disputes concerning treaties, like other 
international disputes, should be settled by peaceful means and in 
conformity with the principles of justice and international law,
    Recalling the determination of the peoples of the United Nations to 
establish conditions under which justice and respect for the 
obligations arising from treaties can be maintained,
    Having in mind the principles of international law embodied in the 
Charter of the United Nations, such as the principles of the equal 
rights and self-determination of peoples, of the sovereign equality and 
independence of all States, of non-interference in the domestic affairs 
of States, of the prohibition of the threat or use of force and of 
universal respect for, and observance of, human rights and fundamental 
freedoms for all,
    Believing that the codification and progressive development of the 
law of treaties achieved in the present Convention will promote the 
purposes of the United Nations set forth in the Charter, namely, the 
maintenance of international peace and security, the development of 
friendly relations and the achievement of co-operation among nations,
    Affirming that the rules of customary international law will 
continue to govern questions not regulated by the provisions of the 
present Convention,
    Have agreed as follows:

                          PART I--INTRODUCTION

                               article 1
                    Scope of the present Convention
    The present Convention applies to treaties between States.
                               article 2
                              Use of terms
    1. For the purposes of the present Convention:
          (a) ``treaty'' means an international agreement concluded 
        between States in written form and governed by international 
        law, whether embodied in a single instrument or in two or more 
        related instruments and whatever its particular designation;
          (b) ``ratification'', ``acceptance'', ``approval'' and 
        ``accession'' mean in each case the international act so named 
        whereby a State establishes on the international plane its 
        consent to be bound by a treaty;
          (c) ``full powers'' means a document emanating from the 
        competent authority of a State designating a person or persons 
        to represent the State for negotiating, adopting or 
        authenticating the text of a treaty, for expressing the consent 
        of the State to be bound by a treaty, or for accomplishing any 
        other act with respect to a treaty;
          (d) ``reservation'' means a unilateral statement, however 
        phrased or named, made by a State, when signing, ratifying, 
        accepting, approving or acceding to a treaty, whereby it 
        purports to exclude or to modify the legal effect of certain 
        provisions of the treaty in their application to that State;
          (e) ``negotiating State'' means a State which took part in 
        the drawing up and adoption of the text of the treaty;
          (f) ``contracting State'' means a State which has consented 
        to be bound by the treaty, whether or not the treaty has 
        entered into force;
          (g) ``party'' means a State which has consented to be bound 
        by the treaty and for which the treaty is in force;
          (h) ``third State'' means a State not a party to the treaty;
          (i) ``international organization'' means an intergovernmental 
        organization.
    2. The provisions of paragraph 1 regarding the use of terms in the 
present Convention are without prejudice to the use of those terms or 
to the meanings which may be given to them in the internal law of any 
State.
                               article 3
International agreements not within the scope of the present Convention
    The fact that the present Convention does not apply to 
international agreements concluded between States and other subjects of 
international law or between such other subjects of international law, 
or to international agreements not in written form, shall not affect:
    (a) the legal force of such agreements;
    (b) the application to them of any of the rules set forth in the 
present Convention to which they would be subject under international 
law independently of the Convention;
    (c) the application of the Convention to the relations of States as 
between themselves under international agreements to which other 
subjects of international law are also parties.
                               article 4
              Non-retroactivity of the present Convention
    Without prejudice to the application of any rules set forth in the 
present Convention to which treaties would be subject under 
international law independently of the Convention, the Convention 
applies only to treaties which are concluded by States after the entry 
into force of the present Convention with regard to such States.
                               article 5
Treaties constituting international organizations and treaties adopted 
                  within an international organization
    The present Convention applies to any treaty which is the 
constituent instrument of an international organization and to any 
treaty adopted within an international organization without prejudice 
to any relevant rules of the organization.

          PART II--CONCLUSION AND ENTRY INTO FORCE OF TREATIES

                   Section 1: Conclusion of Treaties
                               article 6
                Capacity of States to conclude treaties
    Every State possesses capacity to conclude treaties.
                               article 7
                              Full powers
    1. A person is considered as representing a State for the purpose 
of adopting or authenticating the text of a treaty or for the purpose 
of expressing the consent of the State to be bound by a treaty if:
          (a) he produces appropriate full powers; or
          (b) it appears from the practice of the States concerned or 
        from other circumstances that their intention was to consider 
        that person as representing the State for such purposes and to 
        dispense with full powers.
    2. In virtue of their functions and without having to produce full 
powers, the following are considered as representing their State:
          (a) Heads of State, Heads of Government and Ministers for 
        Foreign Affairs, for the purpose of performing all acts 
        relating to the conclusion of a treaty;
          (b) heads of diplomatic missions, for the purpose of adopting 
        the text of a treaty between the accrediting State and the 
        State to which they are accredited;
          (c) representatives accredited by States to an international 
        conference or to an international organization or one of its 
        organs, for the purpose of adopting the text of a treaty in 
        that conference, organization or organ.
                               article 8
   Subsequent confirmation of an act performed without authorization
    An act relating to the conclusion of a treaty performed by a person 
who cannot be considered under article 7 as authorized to represent a 
State for that purpose is without legal effect unless afterwards 
confirmed by that State.
                               article 9
                          Adoption of the text
    1. The adoption of the text of a treaty takes place by the consent 
of all the States participating in its drawing up except as provided in 
paragraph 2.
    2. The adoption of the text of a treaty at an international 
conference takes place by the vote of two-thirds of the States present 
and voting, unless by the same majority they shall decide to apply a 
different rule.
                               article 10
                       Authentication of the text
    The text of a treaty is established as authentic and definitive:
          (a) by such procedure as may be provided for in the text or 
        agreed upon by the States participating in its drawing up; or
          (b) failing such procedure, by the signature, signature ad 
        referendum or initialling by the representatives of those 
        States of the text of the treaty or of the Final Act of a 
        conference incorporating the text.
                               article 11
          Means of expressing consent to be bound by a treaty
    The consent of a State to be bound by a treaty may be expressed by 
signature, exchange of instruments constituting a treaty, ratification, 
acceptance, approval or accession, or by any other means if so agreed.
                               article 12
         Consent to be bound by a treaty expressed by signature
    1. The consent of a State to be bound by a treaty is expressed by 
the signature of its representative when:
          (a) the treaty provides that signature shall have that 
        effect;
          (b) it is otherwise established that the negotiating States 
        were agreed that signature should have that effect; or
          (c) the intention of the State to give that effect to the 
        signature appears from the full powers of its representative or 
        was expressed during the negotiation.
    2. For the purposes of paragraph 1:
          (a) the initialling of a text constitutes a signature of the 
        treaty when it is established that the negotiating States so 
        agreed;
          (b) the signature ad referendum of a treaty by a 
        representative, if confirmed by his State, constitutes a full 
        signature of the treaty.
                               article 13
Consent to be bound by a treaty expressed by an exchange of instruments 
                         constituting a treaty
    The consent of States to be bound by a treaty constituted by 
instruments exchanged between them is expressed by that exchange when:
          (a) the instruments provide that their exchange shall have 
        that effect; or
          (b) it is otherwise established that those States were agreed 
        that the exchange of instruments should have that effect.
                               article 14
 Consent to be bound by a treaty expressed by ratification, acceptance 
                              or approval
    1. The consent of a State to be bound by a treaty is expressed by 
ratification when:
          (a) the treaty provides for such consent to be expressed by 
        means of ratification;
          (b) it is otherwise established that the negotiating States 
        were agreed that ratification should be required;
          (c) the representative of the State has signed the treaty 
        subject to ratification; or
          (d) the intention of the State to sign the treaty subject to 
        ratification appears from the full powers of its representative 
        or was expressed during the negotiation.
    2. The consent of a State to be bound by a treaty is expressed by 
acceptance or approval under conditions similar to those which apply to 
ratification.
                               article 15
         Consent to be bound by a treaty expressed by accession
    The consent of a State to be bound by a treaty is expressed by 
accession when:
          (a) the treaty provides that such consent may be expressed by 
        that State by means of accession;
          (b) it is otherwise established that the negotiating States 
        were agreed that such consent may be expressed by that State by 
        means of accession; or
          (c) all the parties have subsequently agreed that such 
        consent may be expressed by that State by means of accession.
                               article 16
    Exchange or deposit of instruments of ratification, acceptance, 
                         approval or accession
    Unless the treaty otherwise provides, instruments of ratification, 
acceptance, approval or accession establish the consent of a State to 
be bound by a treaty upon:
          (a) their exchange between the contracting States;
          (b) their deposit with the depositary; or
          (c) their notification to the contracting States or to the 
        depositary, if so agreed.
                               article 17
    Consent to be bound by part of a treaty and choice of differing 
                               provisions
    1. Without prejudice to articles 19 to 23, the consent of a State 
to be bound by part of a treaty is effective only if the treaty so 
permits or the other contracting States so agree.
    2. The consent of a State to be bound by a treaty which permits a 
choice between differing provisions is effective only if it is made 
clear to which of the provisions the consent relates.
                               article 18
 Obligation not to defeat the object and purpose of a treaty prior to 
                          its entry into force
    A State is obliged to refrain from acts which would defeat the 
object and purpose of a treaty when:
          (a) it has signed the treaty or has exchanged instruments 
        constituting the treaty subject to ratification, acceptance or 
        approval, until it shall have made its intention clear not to 
        become a party to the treaty; or
          (b) it has expressed its consent to be bound by the treaty, 
        pending the entry into force of the treaty and provided that 
        such entry into force is not unduly delayed.
                        Section 2: Reservations
                               article 19
                      Formulation of reservations
    A State may, when signing, ratifying, accepting, approving or 
acceding to a treaty, formulate a reservation unless:
          (a) the reservation is prohibited by the treaty;
          (b) the treaty provides that only specified reservations, 
        which do not include the reservation in question, may be made; 
        or
          (c) in cases not falling under sub-paragraphs (a) and (b), 
        the reservation is incompatible with the object and purpose of 
        the treaty.
                               article 20
              Acceptance of and objection to reservations
    1. A reservation expressly authorized by a treaty does not require 
any subsequent acceptance by the other contracting States unless the 
treaty so provides.
    2. When it appears from the limited number of the negotiating 
States and the object and purpose of a treaty that the application of 
the treaty in its entirety between all the parties is an essential 
condition of the consent of each one to be bound by the treaty, a 
reservation requires acceptance by all the parties.
    3. When a treaty is a constituent instrument of an international 
organization and unless it otherwise provides, a reservation requires 
the acceptance of the competent organ of that organization.
    4. In cases not falling under the preceding paragraphs and unless 
the treaty otherwise provides:
          (a) acceptance by another contracting State of a reservation 
        constitutes the reserving State a party to the treaty in 
        relation to that other State if or when the treaty is in force 
        for those States;
          (b) an objection by another contracting State to a 
        reservation does not preclude the entry into force of the 
        treaty as between the objecting and reserving States unless a 
        contrary intention is definitely expressed by the objecting 
        State;
          (c) an act expressing a State's consent to be bound by the 
        treaty and containing a reservation is effective as soon as at 
        least one other contracting State has accepted the reservation.
    5. For the purposes of paragraphs 2 and 4 and unless the treaty 
otherwise provides, a reservation is considered to have been accepted 
by a State if it shall have raised no objection to the reservation by 
the end of a period of twelve months after it was notified of the 
reservation or by the date on which it expressed its consent to be 
bound by the treaty, whichever is later.
                               article 21
    Legal effects of reservations and of objections to reservations
    1. A reservation established with regard to another party in 
accordance with articles 19, 20 and 23:
          (a) modifies for the reserving State in its relations with 
        that other party the provisions of the treaty to which the 
        reservation relates to the extent of the reservation; and
          (b) modifies those provisions to the same extent for that 
        other party in its relations with the reserving State.
    2. The reservation does not modify the provisions of the treaty for 
the other parties to the treaty inter se.
    3. When a State objecting to a reservation has not opposed the 
entry into force of the treaty between itself and the reserving State, 
the provisions to which the reservation relates do not apply as between 
the two States to the extent of the reservation.
                               article 22
      Withdrawal of reservations and of objections to reservations
    1. Unless the treaty otherwise provides, a reservation may be 
withdrawn at any time and the consent of a State which has accepted the 
reservation is not required for its withdrawal.
    2. Unless the treaty otherwise provides, an objection to a 
reservation may be withdrawn at any time.
    3. Unless the treaty otherwise provides, or it is otherwise agreed:
          (a) the withdrawal of a reservation becomes operative in 
        relation to another contracting State only when notice of it 
        has been received by that State;
          (b) the withdrawal of an objection to a reservation becomes 
        operative only when notice of it has been received by the State 
        which formulated the reservation.
                               article 23
                    Procedure regarding reservations
    1. A reservation, an express acceptance of a reservation and an 
objection to a reservation must be formulated in writing and 
communicated to the contracting States and other States entitled to 
become parties to the treaty.
    2. If formulated when signing the treaty subject to ratification, 
acceptance or approval, a reservation must be formally confirmed by the 
reserving State when expressing its consent to be bound by the treaty. 
In such a case the reservation shall be considered as having been made 
on the date of its confirmation.
    3. An express acceptance of, or an objection to, a reservation made 
previously to confirmation of the reservation does not itself require 
confirmation.
    4. The withdrawal of a reservation or of an objection to a 
reservation must be formulated in writing.
   Section 3: Entry Into Force and Provision Application of Treaties
                               article 24
                            Entry into force
    1. A treaty enters into force in such manner and upon such date as 
it may provide or as the negotiating States may agree.
    2. Failing any such provision or agreement, a treaty enters into 
force as soon as consent to be bound by the treaty has been established 
for all the negotiating States.
    3. When the consent of a State to be bound by a treaty is 
established on a date after the treaty has come into force, the treaty 
enters into force for that State on that date, unless the treaty 
otherwise provides.
    4. The provisions of a treaty regulating the authentication of its 
text, the establishment of the consent of States to be bound by the 
treaty, the manner or date of its entry into force, reservations, the 
functions of the depositary and other matters arising necessarily 
before the entry into force of the treaty apply from the time of the 
adoption of its text.
                               article 25
                        Provisional application
    1. A treaty or a part of a treaty is applied provisionally pending 
its entry into force if:
          (a) the treaty itself so provides; or
          (b) the negotiating States have in some other manner so 
        agreed.
    2. Unless the treaty otherwise provides or the negotiating States 
have otherwise agreed, the provisional application of a treaty or a 
part of a treaty with respect to a State shall be terminated if that 
State notifies the other States between which the treaty is being 
applied provisionally of its intention not to become a party to the 
treaty.

    PART III--OBSERVANCE, APPLICATION AND INTERPRETATION OF TREATIES

                   Section 1: Observance of Treaties
                               article 26
                          Pacta sunt servanda
    Every treaty in force is binding upon the parties to it and must be 
performed by them in good faith.
                               article 27
                Internal law and observance of treaties
    A party may not invoke the provisions of its internal law as 
justification for its failure to perform a treaty. This rule is without 
prejudice to article 46.
                   Section 2: Application of Treaties
                               article 28
                     Non-retroactivity of treaties
    Unless a different intention appears from the treaty or is 
otherwise established, its provisions do not bind a party in relation 
to any act or fact which took place or any situation which ceased to 
exist before the date of the entry into force of the treaty with 
respect to that party.
                               article 29
                     Territorial scope of treaties
    Unless a different intention appears from the treaty or is 
otherwise established, a treaty is binding upon each party in respect 
of its entire territory.
                               article 30
 Application of successive treaties relating to the same subject-matter
    1. Subject to Article 103 of the Charter of the United Nations, the 
rights and obligations of States parties to successive treaties 
relating to the same subject-matter shall be determined in accordance 
with the following paragraphs.
    2. When a treaty specifies that it is subject to, or that it is not 
to be considered as incompatible with, an earlier or later treaty, the 
provisions of that other treaty prevail.
    3. When all the parties to the earlier treaty are parties also to 
the later treaty but the earlier treaty is not terminated or suspended 
in operation under article 59, the earlier treaty applies only to the 
extent that its provisions are compatible with those of the latter 
treaty.
    4. When the parties to the later treaty do not include all the 
parties to the earlier one:
          (a) as between States parties to both treaties the same rule 
        applies as in paragraph 3;
          (b) as between a State party to both treaties and a State 
        party to only one of the treaties, the treaty to which both 
        States are parties governs their mutual rights and obligations.
    5. Paragraph 4 is without prejudice to article 41, or to any 
question of the termination or suspension of the operation of a treaty 
under article 60 or to any question of responsibility which may arise 
for a State from the conclusion or application of a treaty, the 
provisions of which are incompatible with its obligations towards 
another State under another treaty.
                 Section 3: Interpretation of Treaties
                               article 31
                     General rule of interpretation
    1. A treaty shall be interpreted in good faith in accordance with 
the ordinary meaning to be given to the terms of the treaty in their 
context and in the light of its object and purpose.
    2. The context for the purpose of the interpretation of a treaty 
shall comprise, in addition to the text, including its preamble and 
annexes:
          (a) any agreement relating to the treaty which was made 
        between all the parties in connexion with the conclusion of the 
        treaty;
          (b) any instrument which was made by one or more parties in 
        connexion with the conclusion of the treaty and accepted by the 
        other parties as an instrument related to the treaty.
    3. There shall be taken into account, together with the context:
          (a) any subsequent agreement between the parties regarding 
        the interpretation of the treaty or the application of its 
        provisions;
          (b) any subsequent practice in the application of the treaty 
        which establishes the agreement of the parties regarding its 
        interpretation;
          (c) any relevant rules of international law applicable in the 
        relations between the parties.
    4. A special meaning shall be given to a term if it is established 
that the parties so intended.
                               article 32
                 Supplementary means of interpretation
    Recourse may be had to supplementary means of interpretation, 
including the preparatory work of the treaty and the circumstances of 
its conclusion, in order to confirm the meaning resulting from the 
application of article 31, or to determine the meaning when the 
interpretation according to article 31:
          (a) leaves the meaning ambiguous or obscure; or
          (b) leads to a result which is manifestly absurd or 
        unreasonable.
                               article 33
   Interpretation of treaties authenticated in two or more languages
    1. When a treaty has been authenticated in two or more languages, 
the text is equally authoritative in each language, unless the treaty 
provides or the parties agree that, in case of divergence, a particular 
text shall prevail.
    2. A version of the treaty in a language other than one of those in 
which the text was authenticated shall be considered an authentic text 
only if the treaty so provides or the parties so agree.
    3. The terms of the treaty are presumed to have the same meaning in 
each authentic text.
    4. Except where a particular text prevails in accordance with 
paragraph 1, when a comparison of the authentic texts discloses a 
difference of meaning which the application of articles 31 and 32 does 
not remove, the meaning which best reconciles the texts, having regard 
to the object and purpose of the treaty, shall be adopted.
                  Section 4: Treaties and Third States
                               article 34
                  General rule regarding third States
    A treaty does not create either obligations or rights for a third 
State without its consent.
                               article 35
          Treaties providing for obligations for third States
    An obligation arises for a third State from a provision of a treaty 
if the parties to the treaty intend the provision to be the means of 
establishing the obligation and the third State expressly accepts that 
obligation in writing.
                               article 36
             Treaties providing for rights for third States
    1. A right arises for a third State from a provision of a treaty if 
the parties to the treaty intend the provision to accord that right 
either to the third State, or to a group of States to which it belongs, 
or to all States, and the third State assents thereto. Its assent shall 
be presumed so long as the contrary is not indicated, unless the treaty 
otherwise provides.
    2. A State exercising a right in accordance with paragraph 1 shall 
comply with the conditions for its exercise provided for in the treaty 
or established in conformity with the treaty.
                               article 37
  Revocation or modification of obligations or rights of third States
    1. When an obligation has arisen for a third State in conformity 
with article 35, the obligation may be revoked or modified only with 
the consent of the parties to the treaty and of the third State, unless 
it is established that they had otherwise agreed.
    2. When a right has arisen for a third State in conformity with 
article 36, the right may not be revoked or modified by the parties if 
it is established that the right was intended not to be revocable or 
subject to modification without the consent of the third State.
                               article 38
      Rules in a treaty becoming binding on third States through 
                          international custom
    Nothing in articles 34 to 37 precludes a rule set forth in a treaty 
from becoming binding upon a third State as a customary rule of 
international law, recognized as such.

            PART IV--AMENDMENT AND MODIFICATION OF TREATIES

                               article 39
            General rule regarding the amendment of treaties
    A treaty may be amended by agreement between the parties. The rules 
laid down in Part II apply to such an agreement except in so far as the 
treaty may otherwise provide.
                               article 40
                   Amendment of multilateral treaties
    1. Unless the treaty otherwise provides, the amendment of 
multilateral treaties shall be governed by the following paragraphs.
    2. Any proposal to amend a multilateral treaty as between all the 
parties must be notified to all the contracting States, each one of 
which shall have the right to take part in:
          (a) the decision as to the action to be taken in regard to 
        such proposal;
          (b) the negotiation and conclusion of any agreement for the 
        amendment of the treaty.
    3. Every State entitled to become a party to the treaty shall also 
be entitled to become a party to the treaty as amended.
    4. The amending agreement does not bind any State already a party 
to the treaty which does not become a party to the amending agreement; 
article 30, paragraph 4(b), applies in relation to such State.
    5. Any State which becomes a party to the treaty after the entry 
into force of the amending agreement shall, failing an expression of a 
different intention by that State:
          (a) be considered as a party to the treaty as amended; and
          (b) be considered as a party to the unamended treaty in 
        relation to any party to the treaty not bound by the amending 
        agreement.
                               article 41
   Agreements to modify multilateral treaties between certain of the 
                              parties only
    1. Two or more of the parties to a multilateral treaty may conclude 
an agreement to modify the treaty as between themselves alone if:
          (a) the possibility of such a modification is provided for by 
        the treaty; or
          (b) the modification in question is not prohibited by the 
        treaty and:
                  (i) does not affect the enjoyment by the other 
                parties of their rights under the treaty or the 
                performance of their obligations;
                  (ii) does not relate to a provision, derogation from 
                which is incompatible with the effective execution of 
                the object and purpose of the treaty as a whole.
    2. Unless in a case falling under paragraph 1(a) the treaty 
otherwise provides, the parties in question shall notify the other 
parties of their intention to conclude the agreement and of the 
modification to the treaty for which it provides.

  PART V--INVALIDITY, TERMINATION AND SUSPENSION OF THE OPERATION OF 
                                TREATIES

                     Section 1: General Provisions
                               article 42
             Validity and continuance in force of treaties
    1. The validity of a treaty or of the consent of a State to be 
bound by a treaty may be impeached only through the application of the 
present Convention.
    2. The termination of a treaty, its denunciation or the withdrawal 
of a party, may take place only as a result of the application of the 
provisions of the treaty or of the present Convention. The same rule 
applies to suspension of the operation of a treaty.
                               article 43
   Obligations imposed by international law independently of a treaty
    The invalidity, termination or denunciation of a treaty, the 
withdrawal of a party from it, or the suspension of its operation, as a 
result of the application of the present Convention or of the 
provisions of the treaty, shall not in any way impair the duty of any 
State to fulfil any obligation embodied in the treaty to which it would 
be subject under international law independently of the treaty.
                               article 44
                   Separability of treaty provisions
    1. A right of a party, provided for in a treaty or arising under 
article 56, to denounce, withdraw from or suspend the operation of the 
treaty may be exercised only with respect to the whole treaty unless 
the treaty otherwise provides or the parties otherwise agree.
    2. A ground for invalidating, terminating, withdrawing from or 
suspending the operation of a treaty recognized in the present 
Convention may be invoked only with respect to the whole treaty except 
as provided in the following paragraphs or in article 60.
    3. If the ground relates solely to particular clauses, it may be 
invoked only with respect to those clauses where:
          (a) the said clauses are separable from the remainder of the 
        treaty with regard to their application;
          (b) it appears from the treaty or is otherwise established 
        that acceptance of those clauses was not an essential basis of 
        the consent of the other party or parties to be bound by the 
        treaty as a whole; and
          (c) continued performance of the remainder of the treaty 
        would not be unjust.
    4. In cases falling under articles 49 and 50 the State entitled to 
invoke the fraud or corruption may do so with respect either to the 
whole treaty or, subject to paragraph 3, to the particular clauses 
alone.
    5. In cases falling under articles 51, 52 and 53, no separation of 
the provisions of the treaty is permitted.
                               article 45
   Loss of a right to invoke a ground for invalidating, terminating, 
        withdrawing from or suspending the operation of a treaty
    A State may no longer invoke a ground for invalidating, 
terminating, withdrawing from or suspending the operation of a treaty 
under articles 46 to 50 or articles 60 and 62 if, after becoming aware 
of the facts:
          (a) it shall have expressly agreed that the treaty is valid 
        or remains in force or continues in operation, as the case may 
        be; or
          (b) it must by reason of its conduct be considered as having 
        acquiesced in the validity of the treaty or in its maintenance 
        in force or in operation, as the case may be.
                   Section 2: Invalidity of Treaties
                               article 46
  Provisions of internal law regarding competence to conclude treaties
    1. A State may not invoke the fact that its consent to be bound by 
a treaty has been expressed in violation of a provision of its internal 
law regarding competence to conclude treaties as invalidating its 
consent unless that violation was manifest and concerned a rule of its 
internal law of fundamental importance.
    2. A violation is manifest if it would be objectively evident to 
any State conducting itself in the matter in accordance with normal 
practice and in good faith.
                               article 47
  Specific restrictions on authority to express the consent of a State
    If the authority of a representative to express the consent of a 
State to be bound by a particular treaty has been made subject to a 
specific restriction, his omission to observe that restriction may not 
be invoked as invalidating the consent expressed by him unless the 
restriction was notified to the other negotiating States prior to his 
expressing such consent.
                               article 48
                                 Error
    1. A State may invoke an error in a treaty as invalidating its 
consent to be bound by the treaty if the error relates to a fact or 
situation which was assumed by that State to exist at the time when the 
treaty was concluded and formed an essential basis of its consent to be 
bound by the treaty.
    2. Paragraph 1 shall not apply if the State in question contributed 
by its own conduct to the error or if the circumstances were such as to 
put that State on notice of a possible error.
    3. An error relating only to the wording of the text of a treaty 
does not affect its validity; article 79 then applies.
                               article 49
                                 Fraud
    If a State has been induced to conclude a treaty by the fraudulent 
conduct of another negotiating State, the State may invoke the fraud as 
invalidating its consent to be bound by the treaty.
                               article 50
               Corruption of a representative of a State
    If the expression of a State's consent to be bound by a treaty has 
been procured through the corruption of its representative directly or 
indirectly by another negotiating State, the State may invoke such 
corruption as invalidating its consent to be bound by the treaty.
                               article 51
                Coercion of a representative of a State
    The expression of a State's consent to be bound by a treaty which 
has been procured by the coercion of its representative through acts or 
threats directed against him shall be without any legal effect.
                               article 52
           Coercion of a State by the threat or use of force
    A treaty is void if its conclusion has been procured by the threat 
or use of force in violation of the principles of international law 
embodied in the Charter of the United Nations.
                               article 53
 Treaties conflicting with a peremptory norm of general international 
                            law (jus cogens)
    A treaty is void if, at the time of its conclusion, it conflicts 
with a peremptory norm of general international law. For the purposes 
of the present Convention, a peremptory norm of general international 
law is a norm accepted and recognized by the international community of 
States as a whole as a norm from which no derogation is permitted and 
which can be modified only by a subsequent norm of general 
international law having the same character.
   Section 3: Termination and Suspension of the Operation of Treaties
                               article 54
 Termination of or withdrawal from a treaty under its provisions or by 
                         consent of the parties
    The termination of a treaty or the withdrawal of a party may take 
place:
          (a) in conformity with the provisions of the treaty; or
          (b) at any time by consent of all the parties after 
        consultation with the other contracting States.
                               article 55
  Reduction of the parties to a multilateral treaty below the number 
                   necessary for its entry into force
    Unless the treaty otherwise provides, a multilateral treaty does 
not terminate by reason only of the fact that the number of the parties 
falls below the number necessary for its entry into force.
                               article 56
  Denunciation of or withdrawal from a treaty containing no provision 
           regarding termination, denunciation or withdrawal
    1. A treaty which contains no provision regarding its termination 
and which does not provide for denunciation or withdrawal is not 
subject to denunciation or withdrawal unless:
          (a) it is established that the parties intended to admit the 
        possibility of denunciation or withdrawal; or
          (b) a right of denunciation or withdrawal may be implied by 
        the nature of the treaty.
    2. A party shall give not less than twelve months' notice of its 
intention to denounce or withdraw from a treaty under paragraph 1.
                               article 57
  Suspension of the operation of a treaty under its provisions or by 
                         consent of the parties
    The operation of a treaty in regard to all the parties or to a 
particular party may be suspended:
          (a) in conformity with the provisions of the treaty; or
          (b) at any time by consent of all the parties after 
        consultation with the other contracting States.
                               article 58
   Suspension of the operation of a multilateral treaty by agreement 
                  between certain of the parties only
    1. Two or more parties to a multilateral treaty may conclude an 
agreement to suspend the operation of provisions of the treaty, 
temporarily and as between themselves alone, if:
          (a) the possibility of such a suspension is provided for by 
        the treaty; or
          (b) the suspension in question is not prohibited by the 
        treaty and:
                  (i) does not affect the enjoyment by the other 
                parties of their rights under the treaty or the 
                performance of their obligations;
                  (ii) is not incompatible with the object and purpose 
                of the treaty.
    2. Unless in a case falling under paragraph 1(a) the treaty 
otherwise provides, the parties in question shall notify the other 
parties of their intention to conclude the agreement and of those 
provisions of the treaty the operation of which they intend to suspend.
                               article 59
   Termination or suspension of the operation of a treaty implied by 
                      conclusion of a later treaty
    1. A treaty shall be considered as terminated if all the parties to 
it conclude a later treaty relating to the same subject-matter and:
          (a) it appears from the later treaty or is otherwise 
        established that the parties intended that the matter should be 
        governed by that treaty; or
          (b) the provisions of the later treaty are so far 
        incompatible with those of the earlier one that the two 
        treaties are not capable of being applied at the same time.
    2. The earlier treaty shall be considered as only suspended in 
operation if it appears from the later treaty or is otherwise 
established that such was the intention of the parties.
                               article 60
Termination or suspension of the operation of a treaty as a consequence 
                             of its breach
    1. A material breach of a bilateral treaty by one of the parties 
entitles the other to invoke the breach as a ground for terminating the 
treaty or suspending its operation in whole or in part.
    2. A material breach of a multilateral treaty by one of the parties 
entitles:
          (a) the other parties by unanimous agreement to suspend the 
        operation of the treaty in whole or in part or to terminate it 
        either:
                  (i) in the relations between themselves and the 
                defaulting State, or
                  (ii) as between all the parties;
          (b) a party specially affected by the breach to invoke it as 
        a ground for suspending the operation of the treaty in whole or 
        in part in the relations between itself and the defaulting 
        State;
          (c) any party other than the defaulting State to invoke the 
        breach as a ground for suspending the operation of the treaty 
        in whole or in part with respect to itself if the treaty is of 
        such a character that a material breach of its provisions by 
        one party radically changes the position of every party with 
        respect to the further performance of its obligations under the 
        treaty.
    3. A material breach of a treaty, for the purposes of this article, 
consists in:
          (a) a repudiation of the treaty not sanctioned by the present 
        Convention; or
          (b) the violation of a provision essential to the 
        accomplishment of the object or purpose of the treaty.
    4. The foregoing paragraphs are without prejudice to any provision 
in the treaty applicable in the event of a breach.
    5. Paragraphs 1 to 3 do not apply to provisions relating to the 
protection of the human person contained in treaties of a humanitarian 
character, in particular to provisions prohibiting any form of 
reprisals against persons protected by such treaties.
                               article 61
                Supervening impossibility of performance
    1. A party may invoke the impossibility of performing a treaty as a 
ground for terminating or withdrawing from it if the impossibility 
results from the permanent disappearance or destruction of an object 
indispensable for the execution of the treaty. If the impossibility is 
temporary, it may be invoked only as a ground for suspending the 
operation of the treaty.
    2. Impossibility of performance may not be invoked by a party as a 
ground for terminating, withdrawing from or suspending the operation of 
a treaty if the impossibility is the result of a breach by that party 
either of an obligation under the treaty or of any other international 
obligation owed to any other party to the treaty.
                               article 62
                  Fundamental change of circumstances
    1. A fundamental change of circumstances which has occurred with 
regard to those existing at the time of the conclusion of a treaty, and 
which was not foreseen by the parties, may not be invoked as a ground 
for terminating or withdrawing from the treaty unless:
          (a) the existence of those circumstances constituted an 
        essential basis of the consent of the parties to be bound by 
        the treaty; and
          (b) the effect of the change is radically to transform the 
        extent of obligations still to be performed under the treaty.
    2. A fundamental change of circumstances may not be invoked as a 
ground for terminating or withdrawing from a treaty:
          (a) if the treaty establishes a boundary; or
          (b) if the fundamental change is the result of a breach by 
        the party invoking it either of an obligation under the treaty 
        or of any other international obligation owed to any other 
        party to the treaty.
    3. If, under the foregoing paragraphs, a party may invoke a 
fundamental change of circumstances as a ground for terminating or 
withdrawing from a treaty it may also invoke the change as a ground for 
suspending the operation of the treaty.
                               article 63
             Severance of diplomatic or consular relations
    The severance of diplomatic or consular relations between parties 
to a treaty does not affect the legal relations established between 
them by the treaty except in so far as the existence of diplomatic or 
consular relations is indispensable for the application of the treaty.
                               article 64
 Emergence of a new peremptory norm of general international law (jus 
                                cogens)
    If a new peremptory norm of general international law emerges, any 
existing treaty which is in conflict with that norm becomes void and 
terminates.
                          Section 4: Procedure
                               article 65
   Procedure to be followed with respect to invalidity, termination, 
       withdrawal from or suspension of the operation of a treaty
    1. A party which, under the provisions of the present Convention, 
invokes either a defect in its consent to be bound by a treaty or a 
ground for impeaching the validity of a treaty, terminating it, 
withdrawing from it or suspending its operation, must notify the other 
parties of its claim. The notification shall indicate the measure 
proposed to be taken with respect to the treaty and the reasons 
therefor.
    2. If, after the expiry of a period which, except in cases of 
special urgency, shall not be less than three months after the receipt 
of the notification, no party has raised any objection, the party 
making the notification may carry out in the manner provided in article 
67 the measure which it has proposed.
    3. If, however, objection has been raised by any other party, the 
parties shall seek a solution through the means indicated in article 33 
of the Charter of the United Nations.
    4. Nothing in the foregoing paragraphs shall affect the rights or 
obligations of the parties under any provisions in force binding the 
parties with regard to the settlement of disputes.
    5. Without prejudice to article 45, the fact that a State has not 
previously made the notification prescribed in paragraph 1 shall not 
prevent it from making such notification in answer to another party 
claiming performance of the treaty or alleging its violation.
                               article 66
    Procedures for judicial settlement, arbitration and conciliation
    If, under paragraph 3 of article 65, no solution has been reached 
within a period of 12 months following the date on which the objection 
was raised, the following procedures shall be followed:
          (a) any one of the parties to a dispute concerning the 
        application or the interpretation of articles 53 or 64 may, by 
        a written application, submit it to the International Court of 
        Justice for a decision unless the parties by common consent 
        agree to submit the dispute to arbitration;
          (b) any one of the parties to a dispute concerning the 
        application or the interpretation of any of the other articles 
        in Part V of the present Convention may set in motion the 
        procedure specified in the Annex to the Convention by 
        submitting a request to that effect to the Secretary-General of 
        the United Nations.
                               article 67
  Instruments for declaring invalid, terminating, withdrawing from or 
                  suspending the operation of a treaty
    1. The notification provided for under article 65 paragraph 1 must 
be made in writing.
    2. Any act declaring invalid, terminating, withdrawing from or 
suspending the operation of a treaty pursuant to the provisions of the 
treaty or of paragraphs 2 or 3 of article 65 shall be carried out 
through an instrument communicated to the other parties. If the 
instrument is not signed by the Head of State, Head of Government or 
Minister for Foreign Affairs, the representative of the State 
communicating it may be called upon to produce full powers.
                               article 68
Revocation of notifications and instruments provided for in articles 65 
                                 and 67
    A notification or instrument provided for in articles 65 or 67 may 
be revoked at any time before it takes effect.
Section 5: Consequences of the Invalidity, Termination or Suspension of 
                       the Operation of a Treaty
                               article 69
               Consequences of the invalidity of a treaty
    1. A treaty the invalidity of which is established under the 
present Convention is void. The provisions of a void treaty have no 
legal force.
    2. If acts have nevertheless been performed in reliance on such a 
treaty:
          (a) each party may require any other party to establish as 
        far as possible in their mutual relations the position that 
        would have existed if the acts had not been performed;
          (b) acts performed in good faith before the invalidity was 
        invoked are not rendered unlawful by reason only of the 
        invalidity of the treaty.
    3. In cases falling under articles 49, 50, 51 or 52, paragraph 2 
does not apply with respect to the party to which the fraud, the act of 
corruption or the coercion is imputable.
    4. In the case of the invalidity of a particular State's consent to 
be bound by a multilateral treaty, the foregoing rules apply in the 
relations between that State and the parties to the treaty.
                               article 70
              Consequences of the termination of a treaty
    1. Unless the treaty otherwise provides or the parties otherwise 
agree, the termination of a treaty under its provisions or in 
accordance with the present Convention:
          (a) releases the parties from any obligation further to 
        perform the treaty;
          (b) does not affect any right, obligation or legal situation 
        of the parties created through the execution of the treaty 
        prior to its termination.
    2. If a State denounces or withdraws from a multilateral treaty, 
paragraph 1 applies in the relations between that State and each of the 
other parties to the treaty from the date when such denunciation or 
withdrawal takes effect.
                               article 71
   Consequences of the invalidity of a treaty which conflicts with a 
              peremptory norm of general international law
    1. In the case of a treaty which is void under article 53 the 
parties shall:
          (a) eliminate as far as possible the consequences of any act 
        performed in reliance on any provision which conflicts with the 
        peremptory norm of general international law; and
          (b) bring their mutual relations into conformity with the 
        peremptory norm of general international law.
    2. In the case of a treaty which becomes void and terminates under 
article 64, the termination of the treaty:
          (a) releases the parties from any obligation further to 
        perform the treaty;
          (b) does not affect any right, obligation or legal situation 
        of the parties created through the execution of the treaty 
        prior to its termination; provided that those rights, 
        obligations or situations may thereafter be maintained only to 
        the extent that their maintenance is not in itself in conflict 
        with the new peremptory norm of general international law.
                               article 72
      Consequences of the suspension of the operation of a treaty
    1. Unless the treaty otherwise provides or the parties otherwise 
agree, the suspension of the operation of a treaty under its provisions 
or in accordance with the present Convention:
          (a) releases the parties between which the operation of the 
        treaty is suspended from the obligation to perform the treaty 
        in their mutual relations during the period of the suspension;
          (b) does not otherwise affect the legal relations between the 
        parties established by the treaty.
    2. During the period of the suspension the parties shall refrain 
from acts tending to obstruct the resumption of the operation of the 
treaty.

                   PART VI--MISCELLANEOUS PROVISIONS

                               article 73
    Cases of State succession, State responsibility and outbreak of 
                              hostilities
    The provisions of the present Convention shall not prejudge any 
question that may arise in regard to a treaty from a succession of 
States or from the international responsibility of a State or from the 
outbreak of hostilities between States.
                               article 74
    Diplomatic and consular relations and the conclusion of treaties
    The severance or absence of diplomatic or consular relations 
between two or more States does not prevent the conclusion of treaties 
between those States The conclusion of a treaty does not in itself 
affect the situation in regard to diplomatic or consular relations.
                               article 75
                       Case of an aggressor State
    The provisions of the present Convention are without prejudice to 
any obligation in relation to a treaty which may arise for an aggressor 
State in consequence of measures taken in conformity with the Charter 
of the United Nations with reference to that State's aggression.

  PART VII--DEPOSITARIES, NOTIFICATIONS, CORRECTIONS AND REGISTRATION

                               article 76
                        Depositaries of treaties
    1. The designation of the depositary of a treaty may be made by the 
negotiating States, either in the treaty itself or in some other 
manner. The depositary may be one or more States, an international 
organization or the chief administrative officer of the organization.
    2. The functions of the depositary of a treaty are international in 
character and the depositary is under an obligation to act impartially 
in their performance. In particular, the fact that a treaty has not 
entered into force between certain of the parties or that a difference 
has appeared between a State and a depositary with regard to the 
performance of the latter's functions shall not affect that obligation.
                               article 77
                       Functions of depositaries
    1. The functions of a depositary, unless otherwise provided in the 
treaty or agreed by the contracting States, comprise in particular:
          (a) keeping custody of the original text of the treaty and of 
        any full powers delivered to the depositary;
          (b) preparing certified copies of the original text and 
        preparing any further text of the treaty in such additional 
        languages as may be required by the treaty and transmitting 
        them to the parties and to the States entitled to become 
        parties to the treaty;
          (c) receiving any signatures to the treaty and receiving and 
        keeping custody of any instruments, notifications and 
        communications relating to it;
          (d) examining whether the signature or any instrument, 
        notification or communication relating to the treaty is in due 
        and proper form and, if need be, bringing the matter to the 
        attention of the State in question;
          (e) informing the parties and the States entitled to become 
        parties to the treaty of acts, notifications and communications 
        relating to the treaty;
          (f) informing the States entitled to become parties to the 
        treaty when the number of signatures or of instruments of 
        ratification, acceptance, approval or accession required for 
        the entry into force of the treaty has been received or 
        deposited;
          (g) registering the treaty with the Secretariat of the United 
        Nations;
          (h) performing the functions specified in other provisions of 
        the present Convention.
    2. In the event of any difference appearing between a State and the 
depositary as to the performance of the latter's functions, the 
depositary shall bring the question to the attention of the signatory 
States and the contracting States or, where appropriate, of the 
competent organ of the international organization concerned.
                               article 78
                    Notifications and communications
    Except as the treaty or the present Convention otherwise provide, 
any notification or communication to be made by any State under the 
present Convention shall:
          (a) if there is no depositary, be transmitted direct to the 
        States for which it is intended, or if there is a depositary, 
        to the latter;
          (b) be considered as having been made by the State in 
        question only upon its receipt by the State to which it was 
        transmitted or, as the case may be, upon its receipt by the 
        depositary;
          (c) if transmitted to a depositary, be considered as received 
        by the State for which it was intended only when the latter 
        State has been informed by the depositary in accordance with 
        article 77, paragraph 1 (e).
                               article 79
    Correction of errors in texts or in certified copies of treaties
    1. Where, after the authentication of the text of a treaty, the 
signatory States and the contracting States are agreed that it contains 
an error, the error shall, unless they decide upon some other means of 
correction, be corrected:
          (a) by having the appropriate correction made in the text and 
        causing the correction to be initialled by duly authorized 
        representatives;
          (b) by executing or exchanging an instrument or instruments 
        setting out the correction which it has been agreed to make; or
          (c) by executing a corrected text of the whole treaty by the 
        same procedure as in the case of the original text.
    2. Where the treaty is one for which there is a depositary, the 
latter shall notify the signatory States and the contracting States of 
the error and of the proposal to correct it and shall specify an 
appropriate time-limit within which objection to the proposed 
correction may be raised. If, on the expiry of the time-limit:
          (a) no objection has been raised, the depositary shall make 
        and initial the correction in the text and shall execute a 
        proces-verbal of the rectification of the text and communicate 
        a copy of it to the parties and to the States entitled to 
        become parties to the treaty;
          (b) an objection has been raised, the depositary shall 
        communicate the objection to the signatory States and to the 
        contracting States.
    3. The rules in paragraphs 1 and 2 apply also where the text has 
been authenticated in two or more languages and it appears that there 
is a lack of concordance which the signatory States and the contracting 
States agree should be corrected.
    4. The corrected text replaces the defective text ab initio, unless 
the signatory States and the contracting States otherwise decide.
    5. The correction of the text of a treaty that has been registered 
shall be notified to the Secretariat of the United Nations.
    6. Where an error is discovered in a certified copy of a treaty, 
the depositary shall execute a proces-verbal specifying the 
rectification and communicate a copy of it to the signatory States and 
to the contracting Slates.
                               article 80
                Registration and publication of treaties
    1. Treaties shall, after their entry into force, be transmitted to 
the Secretariat of the United Nations for registration or filing and 
recording, as the case may be, and for publication.
    2. The designation of a depositary shall constitute authorization 
for it to perform the acts specified in the preceding paragraph.

                      PART VIII--FINAL PROVISIONS

                               article 81
                               Signature
    The present Convention shall be open for signature by all States 
Members of the United Nations or of any of the specialized agencies or 
of the International Atomic Energy Agency or parties to the Statute of 
the International Court of Justice, and by any other State invited by 
the General Assembly of the United Nations to become a party to the 
Convention, as follows: until 30 November 1969, at the Federal Ministry 
for Foreign Affairs of the Republic of Austria, and subsequently, until 
30 April 1970, at United Nations Headquarters, New York.
                               article 82
                              Ratification
    The present Convention is subject to ratification. The instruments 
of ratification shall be deposited with the Secretary-General of the 
United Nations.
                               article 83
                               Accession
    The present Convention shall remain open for accession by any State 
belonging to any of the categories mentioned in article 81. The 
instruments of accession shall be deposited with the Secretary-General 
of the United Nations.
                               article 84
                            Entry into force
    1. The present Convention shall enter into force on the thirtieth 
day following the date of deposit of the thirty-fifth instrument of 
ratification or accession.
    2. For each State ratifying or acceding to the Convention after the 
deposit of the thirty-fifth instrument of ratification or accession, 
the Convention shall enter into force on the thirtieth day after 
deposit by such State of its instrument of ratification or accession.
                               article 85
                            Authentic texts
    The original of the present Convention, of which the Chinese, 
English, French, Russian and Spanish texts are equally authentic, shall 
be deposited with the Secretary-General of the United Nations.
    In witness whereof the undersigned Plenipotentiaries, being duly 
authorized thereto by their respective Governments, have signed the 
present Convention.
    Done at Vienna, this twenty-third day of May, one thousand nine 
hundred and sixty-nine.

                                 Annex

    1. A list of conciliators consisting of qualified jurists shall be 
drawn up and maintained by the Secretary-General of the United Nations. 
To this end, every State which is a Member of the United Nations or a 
party to the present Convention shall be invited to nominate two 
conciliators, and the names of the persons so nominated shall 
constitute the list. The term of a conciliator, including that of any 
conciliator nominated to fill a casual vacancy, shall be five years and 
may be renewed. A conciliator whose term expires shall continue to 
fulfil any function for which he shall have been chosen under the 
following paragraph.
    2. When a request has been made to the Secretary-General under 
article 66, the Secretary-General shall bring the dispute before a 
conciliation commission constituted as follows:
    The State or States constituting one of the parties to the dispute 
shall appoint:
          (a) one conciliator of the nationality of that State or of 
        one of those States, who may or may not be chosen from the list 
        referred to in paragraph 1; and
          (b) one conciliator not of the nationality of that State or 
        of any of those States, who shall be chosen from the list.
    The State or States constituting the other party to the dispute 
shall appoint two conciliators in the same way. The four conciliators 
chosen by the parties shall be appointed within sixty days following 
the date on which the Secretary- General receives the request.
    The four conciliators shall, within sixty days following the date 
of the last of their own appointments, appoint a fifth conciliator 
chosen from the list, who shall be chairman.
    If the appointment of the chairman or of any of the other 
conciliators has not been made within the period prescribed above for 
such appointment, it shall be made by the Secretary-General within 
sixty days following the expiry of that period. The appointment of the 
chairman may be made by the Secretary-General either from the list or 
from the membership of the International Law Commission. Any of the 
periods within which appointments must be made may be extended by 
agreement between the parties to the dispute.
    Any vacancy shall be filled in the manner prescribed for the 
initial appointment.
    3. The Conciliation Commission shall decide its own procedure. The 
Commission, with the consent of the parties to the dispute, may invite 
any party to the treaty to submit to it its views orally or in writing. 
Decisions and recommendations of the Commission shall be made by a 
majority vote of the five members.
    4. The Commission may draw the attention of the parties to the 
dispute to any measures which might facilitate an amicable settlement.
    5. The Commission shall hear the parties, examine the claims and 
objections, and make proposals to the parties with a view to reaching 
an amicable settlement of the dispute.
    6. The Commission shall report within twelve months of its 
constitution. Its report shall be deposited with the Secretary-General 
and transmitted to the parties to the dispute. The report of the 
Commission, including any conclusions stated therein regarding the 
facts or questions of law, shall not be binding upon the parties and it 
shall have no other character than that of recommendations submitted 
for the consideration of the parties in order to facilitate an amicable 
settlement of the dispute.
    7. The Secretary-General shall provide the Commission with such 
assistance and facilities as it may require. The expenses of the 
Commission shall be borne by the United Nations.

    For Afghanistan:
        Abdul H. Tabibi \1\
---------------------------------------------------------------------------
    \1\ Text of the declaration:
    ``Afghanistan's understanding of article 62 (fundamental change of 
circumstances) is as follows:
    ``Sub-paragraph 2(a) of this article does not cover unequal and 
illegal treaties, or any treaties which were contrary to the principle 
of self-determination. This view was also supported by the Expert 
Consultant in his statement of 11 May 1968 in the Committee of the 
Whole and on 14 May 1969 (doc. A/CONF.39/L.40) to the Conference.''
---------------------------------------------------------------------------
            Subject to the declaration attached
    For Argentina:
        E. de La Guardia
    For Barbados:
        George C. R. Moe
    For Bolivia:
        J. Romero Loza
            Sujeta a la declaracion anexa \2\
---------------------------------------------------------------------------
    \2\ (Translation by the Secretariat:)
    Subject to the attached declaration.
    1. The shortcomings of the Vienna Convention on the Law of Treaties 
are such as to postpone the realization of the aspirations of mankind.
    2. Nevertheless, the rules endorsed by the Convention do represent 
significant advances, based on the principles of international justice 
which Bolivia has traditionally supported.
---------------------------------------------------------------------------
    For Brazil:
        G. Nascimento e Silva
    For Cambodia:
        Sarin Chhak
    For Chile:
        Pedro J. Rodriguez
        Edmundo Vargas
    For China:
        Liu Chieh
            April 27, 1970
    For Colombia:
        Antonio Bayona
        Humberto Ruiz
        J. J. Caicedo Perdomo
    For the Congo (Brazzaville):
        S. Bikoutha
            Sous reserve de ratification par mon pays \3\
---------------------------------------------------------------------------
    \3\ (Translation by the Secretariat:)
    Subject to ratification by my country.
---------------------------------------------------------------------------
    For Costa Rica:
        J. L. Redondo Gomez
            Ad referendum y sujeto a las reservas anexas \4\
---------------------------------------------------------------------------
    \4\ (Translation by the Secretariat:)
    Ad referendum and subject to the attached reservations.
    1. With regard to articles 11 and 12, the delegation of Costa Rica 
wishes to make a reservation to the effect that the Costa Rican system 
of constitutional law does not authorize any form of consent which is 
not subject to ratification by the Legislative Assembly.
    2. With regard to article 25, it wishes to make a reservation to 
the effect that the Political Constitution of Costa Rica does not 
permit the provisional application of treaties, either.
    3. With regard to article 27, it interprets this article as 
referring to secondary law and not to the provisions of the Political 
Constitution.
    4. With regard to article 38, its interpretation is that no 
customary rule of general international law shall take precedence over 
any rule of the Inter-American System to which, in its view, this 
Convention is supplementary.
---------------------------------------------------------------------------
    For Denmark:
        Otto Borch
            April 18, 1970
    For Ecuador:
        Gonzalo Escudero Moscoso
            Con la declaracion que se anexa \5\
---------------------------------------------------------------------------
    \5\ (Translation by the Secretariat:)
    With the attached declaration:
    In signing this Convention, Ecuador has not considered it necessary 
to make any reservation in regard to article 4 of the Convention 
because it understands that the rules referred to in the first part of 
article 4 include the principle of the peaceful settlement of disputes, 
which is set forth in Article 2, paragraph 3, of the Charter of the 
United Nations and which as jus cogens, has universal and mandatory 
force.
    Ecuador also considers that the first part of article 4 is 
applicable to existing treaties.
    It wished to place on record, in this form, its view that the said 
article 4 incorporates this indisputable principle that, in cases where 
the Convention codifies rules of lex lata, these rules, as pre-existing 
rules, may be invoked and applied to treaties signed before the entry 
into force of this Convention, which is the instrument codifying the 
rules.
---------------------------------------------------------------------------
    For El Salvador:
        R. Galindo Pohl
            16 de febrero de 1970
    For Ethiopia:
        Kifle Wodajo
            30 April 1970
    For the Federal Republic of Germany:
        Alexander Boker
            30th April 1970
    For Finland:
        Erik Castren
    For Ghana:
        Emmanuel K. Dadzie
        G. O. Lamptey
    For Guatemala:
        Adolfo Molina Orantes
            Ad referendum y sujeto a las reservas que constan en
                documento anexo \6\
---------------------------------------------------------------------------
    \6\ (Translation by the Secretariat:)
    Ad referendum and subject to the reservations contained in the 
attached document.
    The delegation of Guatemala, in signing the Vienna Convention on 
the Law of Treaties, wishes to make the following reservations:
    I. Guatemala cannot accept any provision of this Convention which 
would prejudice its rights and its claim to the Territory of Belice.
    II. Guatemala will not apply articles 11, 12, 25 and 66 in so far 
as they are contrary to the provisions of the Constitution of the 
Republic.
    III. Guatemala will apply the provision contained in article 38 
only in cases where it considers that it is in the national interest to 
do so.
---------------------------------------------------------------------------
    For Guyana:
        John Carter
    For the Holy See:
        Opilio Rossi
            30 September 1969
    For Honduras:
        Mario Carias Zapata
    For Iran:
        A. Matine-Daftary
    For Italy:
        Piero Vinci
          22 April 1970
    For the Ivory Coast:
        Lucien Yapobi
            23 July 1969
    For Jamaica:
        L. B. Francis
        K. Rattray
    For Kenya:
        I. S. Bhoi
    For Liberia:
        Nelson Broderick
    For Luxembourg:
        Gaston Thorn
            4 September 1969
    For Madagascar:
        B. Razafintseheno
            Ad referendum
    For Mexico:
        Eduardo Suarez
    For Morocco:
        Taoufiq Kabbaj
            Sous reserve de la declaration ci-jointe \7\
---------------------------------------------------------------------------
    \7\ (Translation by the Secretariat:)
    Subject to the attached declaration.
    Text of the declaration:
    1. Morocco interprets paragraph 2(a) of article 62 (Fundamental 
change of circumstances) as not applying to unlawful or inequitable 
treaties, or to any treaty contrary to the principle of self-
determination. Morocco's views on paragraph 2(a) were supported by the 
Export Consultant in his statements in the Committee of the Whole on 11 
May 1968 and before the Conference in plenary on 14 May 1969 (see 
Document A/CONF.39/L.40).
    2. It shall be understood that Morocco's signature of this 
Convention does not in any way imply that it recognized Israel. 
Furthermore, no treaty relationships will be established between 
Morocco and Israel.
---------------------------------------------------------------------------
    For Nepal:
        Pradumna Lal Rajbhandary
    For New Zealand:
        John V. Scott
            29 April 1970
    For Nigeria:
        T. O. Elias
    For Pakistan:
        A. Shahi
            29 April 1970
    For Peru:
        Luis Alvarado Garrido
        Juan Jose Calle
    For the Philippines:
        Roberto Concepcion
    For the Republic of Korea:
        Yang Soo Yu
            27 November 1969
    For the Sudan:
        Ahmed Salah Bukhari
    For Sweden:
        Torsten Orn
            23 April 1970
    For Trinidad and Tobago:
        T. Baden-Semper
    For the United States of America:
        Richard D. Kearney
            24 April 1970
        John R. Stevenson
            24 April 1970
    For Uruguay:
        Eduardo Jimenez de Arechaga
        Alvaro Alvarez
    For the United Kingdom of Great Britain and Northern Ireland:
        Caradon \8\
---------------------------------------------------------------------------
    \8\ [Text of the declaration:)
    ``In signing the Vienna Convention on the Law of Treaties, the 
Government of the United Kingdom of Great Britain and Northern Ireland 
declare their understanding that nothing in article 66 of the 
Convention is intended to oust the jurisdiction of the International 
Court of Justice where such jurisdiction exists under any provisions in 
force binding the parties with regard to the settlement of disputes. In 
particular, and in relation to States parties to the Vienna Convention 
which accept as compulsory the jurisdiction of the International Court 
of Justice, the Government of the United Kingdom declare that they will 
not regard the provisions of sub-paragraph (b) of article 66 of the 
Vienna Convention as providing `some other method of peaceful 
settlement' within the meaning of sub-paragraph (i) (a) of the 
Declaration of the Government of the United Kingdom accepting as 
compulsory the jurisdiction of the International Court of Justice which 
was deposited with the Secretary-General of the United Nations on the 
1st of January, 1969.
    ``The Government of the United Kingdom, while reserving their 
position for the time being with regard to the other declarations and 
reservations made by various States on signing the Convention, consider 
it necessary to state that the United Kingdom does not accept that 
Guatemala has any rights or any valid claim in respect of the territory 
of British Honduras.''
---------------------------------------------------------------------------
            20 April 1970
                  Subject to the declaration, the text of which is 
                attached
    For Yugoslavia:
        Aleksandar Jelic
    For Zambia:
        Lishomwa Muuka
List of Signatures, Ratifications Deposited and Accessions Deposited as 
                        of December 11, 2000 \1\
---------------------------------------------------------------------------
    \1\ United Nations Treaty Collection [http://untreaty.un.org/]
---------------------------------------------------------------------------
                  Concluded at Vienna on May 23, 1969
Entry into force: January 27, 1980, in accordance with article 84.\2\
---------------------------------------------------------------------------
    \2\ The United States is a signatory but as of December 2000 has 
not ratified the Convention, so the Convention is not in force for the 
United States.
---------------------------------------------------------------------------
Registration: January 27, 1980, No. 18232.
Text: United Nations, Treaty Series, vol. 1155, p. 331.
    Note: The Convention was adopted on May 22, 1969, and opened for 
signature on May 23, 1969, by the United Nations Conference on the Law 
of Treaties. The Convention was convened pursuant to General Assembly 
Resolution 2166 (XXI) of December 5, 1966 and 2287 (XXII) of December 
6, 1967. The Conference held two sessions, both at Neue Hofburg in 
Vienna, the first session from March 26 to May 24, 1968, and the second 
session from April 9 to May 22, 1969. In addition to the Convention, 
the Conference adopted the Final Act and certain declarations and 
resolutions, which are annexed to that Act. By unanimous decision of 
the Conference, the original of the Final Act was deposited in the 
archives of the Federal Ministry for Foreign Affairs of Austria. The 
text of the Final Act is included in Document A/CONF.39/11/Add.2.


------------------------------------------------------------------------
                                                         Ratification,
           Participant                 Signature         Accession (a)
                                                        Succession (s)
------------------------------------------------------------------------
Afghanistan \1\.................  23 May 1969.......
Algeria \2\, \3\................  ..................  8 Nov 1988 a
Argentina \2\, \3\..............  23 May 1969.......  5 Dec 1972
Australia.......................  ..................  13 Jun 1974 a
Austria.........................  ..................  30 Apr 1979 a
Barbados........................  23 May 1969.......  24 Jun 1971
Belarus \3\.....................  ..................  1 May 1986 a
Belgium \2\.....................  ..................  1 Sep 1992 a
Bolivia \1\.....................  23 May 1969.......
Bosnia and Herzegovina..........  ..................  1 Sep 1993 s
Brazil..........................  23 May 1969.......
Bulgaria \2\, \3\...............  ..................  21 Apr 1987 a
Cambodia........................  23 May 1969.......
Cameroon........................  ..................  23 Oct 1991 a
Canada \1\......................  ..................  14 Oct 1970 a
Central African Republic........  ..................  10 Dec 1971 a
Chile \2\, \4\..................  23 May 1969.......  9 Apr 1981
China, People's Republic \2\,     ..................  3 Sep 1997 a
 \3\.
Colombia \2\....................  23 May 1969.......  10 Apr 1985
Congo...........................  23 May 1969.......  12 Apr 1982
Congo, Democratic Republic of     ..................  25 Jul 1977 a
 (former Zaire).
Costa Rica \2\, \3\.............  23 May 1969.......  22 Nov 1996
Cote D'Ivoire...................  23 Jul 1969.......
Croatia.........................  ..................  12 Oct 1992 a
Cuba \2\........................  ..................  9 Sep 1998 a
Cyprus..........................  ..................  28 Dec 1976 a
Czech Republic..................  ..................  22 Feb 1993 s
Czechoslovakia \2\, \5\.........  ..................  29 Jul 1987 a
Denmark \2\.....................  18 Apr 1970.......  1 Jun 1976
Ecuador \1\.....................  23 May 1969.......
Egypt \4\.......................  ..................  11 Feb 1982 a
El Salvador.....................  16 Feb 1970.......
Estonia.........................  ..................  21 Oct 1991 a
Ethiopia........................  30 Apr 1970.......
Finland \3\.....................  23 May 1969.......  19 Aug 1977
Germany \3\, \4\................  30 Apr 1970.......  21 Jul 1987
Ghana...........................  23 May 1969.......
Greece..........................  ..................  30 Oct 1974 a
Guatemala \2\...................  23 May 1969.......  21 Jul 1997
Guyana..........................  23 May 1969.......
Haiti...........................  ..................  25 Aug 1980 a
Holy See........................  30 Sep 1969.......  25 Feb 1977
Honduras........................  23 May 1969.......  20 Sep 1979
Hungary \2\, \6\................  ..................  19 Jun 1987 a
Iran (Islamic Republic of)......  23 May 1969.......
Italy...........................  23 Apr 1970.......  25 Jul 1974
Jamaica.........................  23 May 1969.......  28 Jul 1970
Japan \1\, \4\..................  ..................  2 Jul 1981 a
Kazakhstan......................  ..................  5 Jan 1994 a
Kenya...........................  23 May 1969.......
Korea, Republic of..............  29 Nov 1969.......  27 Apr 1977 a
Kuwait..........................  ..................  11 Nov 1975 a
Kyrgyzstan......................  ..................  11 May 1999 a
Laos, People's Democratic         ..................  31 Mar 1998 a
 Republic.
Latvia..........................  ..................  4 May 1993 a
Lesotho.........................  ..................  3 Mar 1972 a
Liberia.........................  23 May 1969.......  29 Aug 1985
Liechtenstein...................  ..................  8 Feb 1990 a
Lithuania.......................  ..................  15 Jan 1992 a
Luxembourg......................  4 Sep 1969........
Macedonia, former Yugoslav        ..................  8 Jul 1999 s
 Republic of.
Madagascar......................  23 May 1969.......
Malawi..........................  ..................  23 Aug 1983 a
Malaysia........................  ..................  27 Jul 1994 a
Mali............................  ..................  31 Aug 1998 a
Mauritius.......................  ..................  18 Jan 1973 a
Mexico..........................  23 May 1969.......  25 Sep 1974
Moldova.........................  ..................  26 Jan 1993 a
Mongolia \2\, \3\, \6\..........  ..................  16 May 1988 a
Morocco \1\, \3\................  23 May 1969.......  26 Sep 1972
Myanmar.........................  ..................  16 Sep 1998 a
Nauru...........................  ..................  5 May 1978 a
Nepal...........................  23 May 1969.......
Netherlands \3\.................  ..................  9 Apr 1985 a
New Zealand \1\.................  29 Apr 1970.......  4 Aug 1971
Niger...........................  ..................  27 Oct 1971 a
Nigeria.........................  23 May 1969.......  31 Jul 1969
Oman............................  ..................  18 Oct 1990 a
Pakistan........................  29 Apr 1970.......
Panama..........................  ..................  28 Jul 1980 a
Paraguay........................  ..................  3 Feb 1972 a
Peru \2\........................  23 May 1969.......  14 Sep 2000
Philippines.....................  23 May 1969.......  15 Nov 1972
Poland..........................  ..................  2 Jul 1990 a
Russian Federation \2\, \3\.....  ..................  29 Apr 1986 a
Rwanda..........................  ..................  3 Jan 1980 a
Saint Vincent and the Grenadines  ..................  27 Apr 1999 a
Senegal \3\, \4\................  ..................  11 Apr 1986 a
Slovakia........................  ..................  28 May 1993 s
Slovenia........................  ..................  6 Jul 1992 s
Solomon Islands.................  ..................  9 Aug 1989 a
Spain...........................  ..................  16 May 1972 a
Sudan...........................  23 May 1969.......  18 Apr 1990
Suriname........................  ..................  31 Jan 1991 a
Sweden \3\......................  23 Apr 1970.......  4 Feb 1975
Switzerland.....................  ..................  7 May 1990 a
Syrian Arab Republic \2\, \7\...  ..................  2 Oct 1970 a
Tajikistan......................  ..................  6 May 1996 a
Togo............................  ..................  28 Dec 1979 a
Trinidad and Tobago.............  23 May 1969.......
Tunisia \2\.....................  ..................  23 Jun 1971 a
Turkmenistan....................  ..................  4 Jan 1996 a
Ukranian Soviet Socialist         ..................  14 May 1986 a
 Republic \2\, \3\.
United Kingdom \1\..............  20 Apr 1970.......  25 Jun 1971
United Republic of Tanzania \2\.  ..................  12 Apr 1976 a
United States of America........  24 Apr 1970.......
Uruguay.........................  23 May 1969.......  5 Mar 1982
Uzbekistan......................  ..................  12 Jul 1995 a
Yugoslavia......................  23 May 1969.......  27 Aug 1970
Zambia..........................  23 May 1969.......
------------------------------------------------------------------------
\1\ With a statement(s).
\2\ With a reservation(s).
\3\ with a declaration(s).
\4\ With an objection to a statement.
\5\ Reservation withdrawn on October 19, 1990.
\6\ Reservation withdrawn.
\7\ United States objected to Syrian reservation May 24, 1971; United
  Kingdom objected June 25, 1971; New Zealand objected October 14, 1971;
  Canada objected 22, 1971; and others.



            APPENDIX 6.--GLOSSARY OF TREATY TERMINOLOGY \1\
---------------------------------------------------------------------------

    \1\ The purpose of this glossary is to assist in the recognition of 
terms. It is not designed to duplicate the more comprehensive treatment 
which may be given to these terms throughout the text of this work.
---------------------------------------------------------------------------
                              ----------                              

    Abrogation: The formal act by a state of terminating its consent to 
be bound by an international agreement. Sometimes used interchangeably 
with ``denunciation.''
    Acceptance: See ``consent to be bound.''
    Accession: A process by which a nation that was not originally a 
party to a treaty which has already been agreed upon by other states, 
becomes a party to the treaty. A treaty must specifically provide for 
accession in order for states to accede to it. Sometimes the terms 
``adherence'' and ``adhesion'' are used interchangeably with 
``accession.'' Also see ``consent to be bound.''
    Accord: The equivalent of agreement.
    Acte finale: See ``final act.''
    Adherence: See ``accession.''
    Adhesion: The act of a state announcing its intent to abide by the 
principles of a treaty without formally becoming a party to it. See 
``accession.''
    Agreement pursuant to a treaty: A type of executive agreement which 
is concluded by the President on the basis of prior authority contained 
in an existing treaty.
    Amendment: In the context of Senate conditions for approval of a 
treaty, amendments are proposed Senate changes in the text of a treaty. 
See also ``conditional approval.''
    Approval: See ``consent to be bound.''
    Arbitration: A dispute settlement process whereby the parties agree 
to submit their differences to judges of their own choice, and to abide 
by the decision of the judges.
    Bilateral treaty: An international agreement concluded between two 
states.
    Case Act: Formally called the Case-Zablocki Act after the 
legislation's sponsors (Public Law 92-403). A U.S. law requiring the 
President to transmit all international agreements other than treaties 
to the Congress within 60 days after their effective date.
    Circular 175: An internal Department of State circular the purpose 
of which is to facilitate the application of orderly and uniform 
measures to the negotiation, signature, publication, and registration 
of U.S. treaties and international agreements, and to facilitate the 
maintenance of complete and accurate records on such agreements.
    Conciliation: A non-binding dispute settling procedure by which a 
dispute is referred to a commission of persons who are empowered to 
examine the facts and make recommendations for settlement.
    Conclusion: The culmination of negotiations into a specific 
agreement, usually marked by its signing or initialing.
    Conditional approval: A term used to indicate Senate approval of a 
treaty subject to conditions such as amendments, reservations, 
understandings, declarations, and provisos.
    Congressional executive agreement: A type of executive agreement 
which is concluded by the President with either prior or subsequent 
statutory authorization.
    Connally amendment: This term refers to the reservation made by the 
Senate in ratifying the optional clause under Article 36, paragraph 2 
of the Statute of the International Court of Justice. The reservation 
excludes from U.S. acceptance of the court's compulsory jurisdiction 
disputes with regard to matters which are ``essentially within the 
domestic jurisdiction of the United States of America as determined by 
the United States of America.''
    Consent to be bound: A formal procedure by which a nation enters 
into an international agreement by expressing its intent to be legally 
bound by the agreement. Such consent to be bound may be expressed by 
ratification, acceptance or approval, accession, or by signature in the 
case of executive agreements. In U.S. practice, it is the President who 
ratifies a treaty after the Senate gives its advice and consent.
    Convention: A term which denotes an international agreement 
concluded at an international conference. Often used interchangeably 
with ``treaty.''
    Declaration: A formal statement, explanation or clarification made 
by the Senate about its opinion or intentions on matters relating to 
issues raised by a treaty under consideration. Such declarations are 
analogous to a ``sense of the Senate resolution.'' Other Senate 
statements which do not substantively modify a treaty may be entitled 
``declaration,'' ``understanding,'' ``statement,'' or any other 
descriptive term desired. See ``conditional approval.'' The term 
``declaration'' may also be used to signify a unilateral statement by a 
country. See ``non-binding international agreement.''
    Denunciation: See ``abrogation.''
    Deposit: Unless a multilateral treaty provides otherwise, it 
generally enters into force after the deposit of a specified number of 
instruments of ratification at a specific location. See also ``exchange 
of ratifications.''
    Entry into force: The moment at which an international agreement 
becomes binding and formally enters into force. See also ``exchange of 
ratifications'' and ``deposit.''
    Exchange of notes: An often-used means to conclude international 
agreements. Under this procedure, diplomatic notes embodying an 
agreement are usually exchanged between a diplomatic representative of 
a state and the Minister of Foreign Affairs (Secretary of State) of the 
country to which the diplomat is accredited.
    Exchange of ratifications: Unless a treaty otherwise provides, 
bilateral treaties enter into force upon, or at a specified period 
after, a formal exchange of the instruments of ratification between the 
parties. See also ``deposit.''
    Executive agreement: In the domestic law of the United States, an 
international agreement concluded by the President in accordance with a 
procedure other than that which is specified in Article II, Section 2, 
Clause 2 of the Constitution.
    Final act: A formal statement or summary of the proceedings of a 
conference or congress. Also called ``acte finale.''
    Final vote: Refers to a final Senate vote on the resolution of 
ratification of a treaty and the requirement for a two-thirds majority 
for approval.
    Gentleman's agreement: See ``non-binding international agreement.''
    Invalidation of a treaty: A process by which a state (or states) 
faced with an option of maintaining a treaty in force or of invoking 
grounds which would permit the state to terminate the treaty, chooses 
the latter option by invalidating the treaty. Grounds for invalidation 
of treaty include: fraud, corruption, coercion, error, and violation of 
a domestic law of fundamental importance. Violation of a peremptory 
rule of international law ( jus cogens) also constitutes grounds which 
make a treaty invalid.
    Joint communique: See ``non-binding international agreement.''
    Joint statement: See ``non-binding international agreement.''
    Jus cogens: A concept accepted by many legal scholars and by the 
Vienna Convention on the Law of Treaties that certain rules or norms of 
international law are so fundamental that states are not permitted to 
violate them. An agreement by two states to invade and colonize another 
is often cited as violating such a jus cogens rule against the use of 
aggressive force.
    Negotiation: The exchange and discussion of proposals by 
representatives of governments for the purpose of reaching an agreement 
or understanding.
    Non-binding international agreement: An international agreement (or 
statement) which does not convey an intent by the party (or parties) to 
be legally bound. Common forms include unilateral commitments and 
declarations of intent, joint communiques and joint statements, final 
acts of international conferences, and so-called ``gentleman's 
agreements.''
    Pacta sunt servanda: A well-recognized international rule that 
``agreements must be kept.''
    Presidential or sole executive agreement: A type of executive 
agreement which is concluded by the President solely on the basis of 
his independent authority under Article II of the Constitution.
    Proclamation: A national act by which the terms of a treaty are 
``made public.'' In the United States, the President generally 
proclaims treaties. The text of the President's proclamation includes a 
word-by-word recitation of any understanding, declaration, or 
reservation contained in the Senate's resolution of advice and consent.
    Protocol: A term used to denote an international agreement. A 
protocol is often used to supplement, clarify, amend, or qualify a 
treaty and is sometimes of a less formal nature than a treaty.
    Provisional application: A term which refers to measures taken by 
nations to carry out the provisions of a treaty prior to its formal 
entry into force.
    Proviso: A condition on Senate approval of a treaty which relates 
to issues of U.S. law and procedure and does not directly involve the 
other parties to a treaty. See also ``conditional approval.''
    Ratification: See ``consent to be bound.''
    Rebus sic stantibus: A legal maxim which refers to a fundamental 
change of circumstances affecting the performance of obligations under 
an agreement which was not foreseen by those making the agreement at 
the time it was concluded and which provides grounds for termination of 
a treaty.
    Reservation: A formal statement or condition which limits or 
modifies the substance of a treaty. Such statements are traditionally 
formally presented at the time of signature, ratification or accession 
of a treaty. In U.S. practice, reservations may originate with the 
Senate as part of its resolution of advice and consent to a treaty. See 
also ``conditional approval.''
    Return: See ``withdrawal.''
    Rule 25: The internal rule of the Senate which prescribes the 
jurisdiction of all Senate committees and which gives the Senate 
Foreign Relations Committee exclusive jurisdiction over treaties.
    Rule 30: The internal rule of the Senate which governs the process 
of treaty consideration in that body.
    Senate rule: See ``rule 25'' and ``rule 30.''
    Sole executive agreement: See ``Presidential or sole executive 
agreement.''
    Statement: See ``declaration.''
    Suspension: A process whereby a state unilaterally decides to hold 
in abeyance its compliance with the provisions of an international 
agreement or with certain parts thereof.
    Termination of a treaty: A process by which a nation declares that 
it will no longer adhere to a treaty which was valid and in force. 
Termination may be similar to withdrawal, although withdrawal is 
frequently the act which effects termination.
    Treaty: In the domestic law of the United States, an international 
agreement concluded by the President with the advice and consent of 
two-thirds of the U.S. Senate as specified in Article II, Section 2, 
Clause 2 of the Constitution. Under international law, any binding 
international agreement between states which expresses an intent by the 
parties to be legally bound by international law to specified 
obligations.
    Understanding: In the context of Senate consideration of a treaty, 
understandings are interpretative statements designed to clarify or 
elaborate (rather than change) the provisions of an agreement. See also 
``declaration,'' and ``conditional approval.''
    Unilateral declaration: See ``non-binding international 
agreement.''
    Vienna Convention on the Law of Treaties: A multilateral treaty 
designed to govern treaty relationships among member states. As of 
December 11, 2000, 86 countries have ratified, or acceded to, the 
Vienna Convention; 5 states have succeeded to it. The United States 
signed it on April 24, 1970. The Senate, however, has not yet given its 
advice and consent to the convention.
    Withdrawal: A means of terminating the obligations of an 
international agreement with respect to a withdrawing party. See 
``termination of a treaty.'' In the context of Senate consideration of 
a pending treaty, ``withdrawal'' or ``return'' refers to the return of 
a treaty from the Senate prior to the Senate's giving its advice and 
consent.


   APPENDIX 7.--SIMULTANEOUS CONSIDERATION OF TREATIES AND AMENDING 
                               PROTOCOLS:



                          SELECTED PRECEDENTS

                              ----------                              

 Selected Precedents Where Treaties Have Been Considered by the Senate 
  Together with Specified Protocols in One Resolution of Ratification 
         Although Transmitted to the Senate at Different Times

1. TREATY WITH MEXICO RELATING TO UTILIZATION OF THE WATERS OF CERTAIN 
                    RIVERS (Ex. A, 78-2, and Ex. H, 78-2)

    On February 3, 1944, the Treaty was signed. It was transmitted to 
the Senate on February 15, 1944 (Ex. A, 78-2). On November 14, 1944, 
the Supplementary Protocol was signed. It was transmitted to the Senate 
on November 24, 1944 (Ex. H, 78-2).
    On April 18, 1945, the Senate gave its advice and consent to both 
the Treaty and the Protocol in a 76-10 vote. The resolution of 
ratification read:
          Resolved (two-thirds of the Senators present concurring 
        therein), That the Senate advise and consent to the 
        ratification of Executive A, Seventy-eighth Congress, second 
        session, a treaty between the United States of America and the 
        United Mexican States, signed at Washington on February 3, 
        1944, relating to the utilization of the waters of the Colorado 
        and Tijuana Rivers and of the Rio Grande from Fort Quitman, 
        Tex., to the Gulf of Mexico, and Executive H, Seventy-eighth 
        Congress, second session, a protocol, signed at Washington on 
        November 14, 1944, supplementary to the treaty, subject to the 
        following understandings, and that these understandings will be 
        mentioned in the ratification of this treaty as conveying the 
        true meaning of the treaty, and will in effect form a part of 
        the treaty: * * * [understanding omitted] \1\
---------------------------------------------------------------------------
    \1\ Congressional Record, vol. 91, part 3, p. 3492.
---------------------------------------------------------------------------

2. CONVENTION BETWEEN FRANCE AND THE UNITED STATES AS TO DOUBLE 
                    TAXATION AND FISCAL ASSISTANCE AND SUPPLEMENTARY 
                    PROTOCOL (S. Ex. A, 80-1 and S. Ex. G, 80-2)

    On October 18, 1946, a Convention between France and the United 
States was signed. It was transmitted to the Senate for advice and 
consent on January 10, 1947 (Ex. A, 80-1). On May 17, 1948, a 
Supplementary Protocol was signed. It was transmitted to the Senate for 
advice and consent on May 19, 1948 (Ex. G, 80-2).
    On June 2, 1948, the Senate gave its advice and consent to 
ratification of the Convention and the Protocol. The resolution of 
ratification read:
          Resolved (two-thirds of the Senators present concurring 
        therein), That the Senate advise and consent to the 
        ratification of Executive A, Eightieth Congress, first session, 
        a convention between the United States of America and France, 
        signed at Paris on October 18, 1946 for the avoidance of double 
        taxation and the prevention of evasion in the case of taxes on 
        estates and inheritances, and for the purpose of modifying and 
        supplementing certain provisions of the convention between the 
        two governments relating to income taxation signed at Paris on 
        July 25, 1939.
          Resolved further (two-thirds of the Senators present 
        concurring therein), That the Senate advise and consent to the 
        ratification of Executive G, Eightieth Congress, second 
        session, a supplementary protocol, signed at Washington on May 
        17, 1948, modifying in certain respects the convention between 
        the United States of America and France, signed at Paris on 
        October 18, 1946, for the avoidance of double taxation and in 
        the case of evasion of taxes on estates and inheritances, and 
        for the purpose of modifying and supplementing certain 
        provisions of the convention between the two Governments 
        relating to income taxation signed at Paris on July 25, 
        1939.\2\
---------------------------------------------------------------------------
    \2\ Congressional Record, vol. 94, part 5, p. 6940.
---------------------------------------------------------------------------

3. TAX CONVENTION WITH CANADA AND TWO PROTOCOLS (Ex. T, 96-2; Treaty 
                    Doc. 98-7; and Treaty Doc. 98-22)

    On September 26, 1980, the Tax Convention with Canada was signed. 
It was transmitted to the Senate for advice and consent to ratification 
on November 12, 1980 (Ex. T, 96-2). On June 14, 1983, the first 
Protocol was signed. It was transmitted to the Senate for advice and 
consent to ratification on September 21, 1983 (Treaty Doc. 98-7). On 
March 28, 1984, the second Protocol was signed. It was transmitted to 
the Senate for advice and consent on April 18, 1984 (Treaty Doc. 98-
22).
    The Committee on Foreign Relations considered the Treaty and its 
two Protocols together and ordered them reported on May 8, 1984. On 
June 26 and June 28, 1984, the Senate considered the treaty and its two 
protocols and agreed to the resolution of ratification. The resolution 
of ratification read:
          Resolved (two-thirds of the Senators present concurring 
        therein), That the Senate advise and consent to the 
        ratification of the Convention between the United States of 
        America and Canada with Respect to Taxes on Income and on 
        Capital (the Convention) together with a related exchange of 
        notes, signed at Washington on September 26, 1980; the Protocol 
        Amending the 1980 Convention (the First Protocol), together 
        with a related exchange of notes, signed at Ottawa on June 14, 
        1983; and the Second Protocol Amending the 1980 Convention (as 
        amended by the First Protocol), signed at Washington on March 
        28, 1984.\3\
---------------------------------------------------------------------------
    \3\ Congressional Record, June 28, 1984, p. S8573 (daily ed.).
---------------------------------------------------------------------------

4. TREATIES WITH THE U.S.S.R. ON THE LIMITATION OF UNDERGROUND NUCLEAR 
                    WEAPON TESTS AND ON UNDERGROUND NUCLEAR EXPLOSIONS 
                    FOR PEACEFUL PURPOSES AND PROTOCOLS (Ex. N, 94-2; 
                    and Treaty Doc. 101-19)

    The United States and the Soviet Union signed the Treaty on the 
Limitation of Underground Nuclear Weapon Tests (Threshold Test Ban 
Treaty) on July 3, 1974, and the Treaty on Underground Nuclear 
Explosions for Peaceful Purposes on May 28, 1976. The President 
submitted the treaties together to the Senate on July 29, 1976 (Ex. N, 
94-2). The Foreign Relations Committee reported the treaties with 
reservations and declarations on February 27, 1987 (Exec. Rept. 100-1) 
but they were not considered in the Senate and were automatically 
referred back to the committee at the end of the 100th Congress. 
Protocols relating to verification of the treaties were signed on June 
1, 1990, and submitted to the Senate on June 28, 1990 (Treaty Doc. 101-
19).
    The Senate Foreign Relations Committee reported the treaties and 
protocols together on September 14, 1990 (Exec. Rept. 101-31). On 
September 25, 1990, the Senate considered the treaties en bloc and gave 
its advice and consent to the Threshold Test Ban Treaty and its new 
protocol, subject to two declarations, and the Peaceful Nuclear 
Explosions Treaty and its protocol. The resolution of ratification 
read:
          Resolved (two-thirds of the Senators present concurring 
        therein), That the Senate advise and consent to ratification of 
        the Treaty Between the United States of America and the Union 
        of Soviet Socialist Republics on the Limitation of Underground 
        Nuclear Weapon Tests, signed in Moscow on July 3, 1974, and the 
        Protocol thereto, signed in Washington on June 1, 1990, subject 
        to * * * [declarations omitted].\4\
---------------------------------------------------------------------------
    \4\ Congressional Record, September 25, 1990, pp. S13767-S13768 
(daily ed.).
---------------------------------------------------------------------------
          Resolved (two-thirds of the Senators present concurring 
        therein), That the Senate advise and consent to ratification of 
        the Treaty Between the United States of America and the Union 
        of Soviet Socialist Republics on Underground Nuclear Explosions 
        for Peaceful Purposes, signed in Washington and Moscow on May 
        28, 1976, and the Protocol thereto, signed in Washington on 
        June 1, 1990, and an Agreed Statement relating to paragraph 
        2(c) of Article III of the treaty, signed on May 13, 1976.\5\
---------------------------------------------------------------------------
    \5\ Congressional Record, September 25, 1990, p. S13768 (daily 
ed.).


              APPENDIX 8.--TREATIES APPROVED BY THE SENATE

                              ----------                              

  January 5, 1993 to October 18, 2000 (103d, 104th, 105th, and 106th 
                              Congresses)
    (in reverse chronological order, by date of Senate approval) \1\
---------------------------------------------------------------------------
    \1\ Based on legislative calendars of the Committee on Foreign 
Relations, U.S. Senate, various years. Entry into force shows date 
treaty entered into force for the United States.
---------------------------------------------------------------------------

2000

Treaty Between the Government of the United States of America and the 
        Government of the Republic of Uzbekistan Concerning the 
        Encouragement and Reciprocal Protection of Investment, with 
        Annex, signed at Washington on December 16, 1994. T. Doc. 104-
        25 reported on February 28, 1996. Exec. Rept. 106-23 reported 
        with one declaration and one proviso on October 4, 2000. Advice 
        and consent given on October 18, 2000.
United Nations Convention to Combat Desertification in Those Countries 
        Experiencing Serious Drought and/or Desertification, 
        particularly in Africa, with Annexes, adopted at Paris, June 
        17, 1994, and signed by the United States on October 14, 1994. 
        T. Doc. 104-29 reported on August 2, 1996. Exec. Rept. 106-25 
        reported with five understandings, three declarations, and two 
        provisos on October 4, 2000. Advice and consent given on 
        October 18, 2000.
Inter-American Convention on Serving Criminal Sentences Abroad, done in 
        Managua, Nicaragua, on June 9, 1993, signed on behalf of the 
        United States at the OAS Headquarters in Washington on January 
        10, 1995. T. Doc. 104-35 reported on September 30, 1996. Exec. 
        Rept. 106-21 reported with one reservation, one understanding, 
        one declaration, and one proviso on September 29, 2000. Advice 
        and consent given on October 18, 2000.
Inter-American Convention on Mutual Assistance in Criminal Matters, 
        adopted at the twenty-second regular session of the 
        Organization of American States (OAS) General Assembly meeting 
        in Nassau, The Bahamas, on May 23, 1992, and the Optional 
        Protocol Related to the Inter-American Convention on Mutual 
        Assistance in Criminal Matters, adopted at the twenty-third 
        regular session of the OAS General Assembly meeting in Managua, 
        Nicaragua, on June 11, 1993. Both instruments signed on behalf 
        of the United States at OAS Headquarters in Washington on 
        January 10, 1995. T. Doc. 104-25 reported on September 3, 1997. 
        Exec. Rept. 106-24 reported with three understandings, one 
        declaration, and one proviso on October 4, 2000. Advice and 
        consent given on October 18, 2000.
Treaty Between the Government of the United States of America and the 
        Government of Belize for the Return of Stolen Vehicles, with 
        Annexes and Protocol, signed at Belmopan on October 3, 1996. T. 
        Doc. 105-54 reported on June 23, 1998. Exec. Rept. 106-22 
        reported with one declaration and one proviso. Advice and 
        consent given on October 18, 2000.
Treaty Between the Government of the United States of America and the 
        Government of the Republic of Guatemala for the Return of 
        Stolen, Robbed, Embezzled or Appropriated Vehicles and 
        Aircraft, with Annexes and a Related Exchange of Notes, signed 
        at Guatemala City on October 6, 1997. T. Doc. 105-58 reported 
        on August 31, 1998. Exec. Rept. 106-22 reported with one 
        declaration and one proviso. Advice and consent given on 
        October 18, 2000.
Extradition Treaty Between the Government of the United States of 
        America and the Government of the Republic of Paraguay, signed 
        at Washington on November 9, 1998. T. Doc. 106-4 reported on 
        July 13, 1999. Exec. Rept. 106-26 reported with one 
        understanding, one declaration and one proviso on October 4, 
        2000. Advice and consent given on October 18, 2000.
Treaty Between the Government of the United States of America and the 
        Government of the Dominican Republic for the Return of Stolen 
        or Embezzled Vehicles, with Annexes, signed at Santo Domingo on 
        April 30, 1996. T. Doc. 106-7 reported on September 8, 1999. 
        Exec. Rept. 106-22 reported with one declaration and one 
        proviso on September 29, 2000. Advice and consent given on 
        October 18, 2000.
Treaty Between the United States of America and Ukraine on Mutual Legal 
        Assistance in Criminal Matters, with Annex, signed at Kiev on 
        July 22, 1998. T. Doc. 106-16 reported on November 10, 1999. 
        Exec. Rept. 106-24 reported with one understanding, one 
        declaration and two provisos on October 4, 2000. Advice and 
        consent given on October 18, 2000.
Treaty Between the United States of America and the Government of 
        France on Mutual Legal Assistance in Criminal Matters, signed 
        at Paris on December 10, 1998. T. Doc. 106-17 reported on 
        January 31, 2000. Exec. Rept. 106-24 reported with one 
        understanding, one declaration and two provisos on October 4, 
        2000. Advice and consent given on October 18, 2000.
Treaty Between the United States of America and the Hellenic Republic 
        on Mutual Legal Assistance in Criminal Matters, signed at 
        Washington on May 26, 1999. T. Doc. 106-18 reported on February 
        1, 2000. Exec. Rept. 106-24 reported with one understanding, 
        one declaration and two provisos on October 4, 2000. Advice and 
        consent given on October 18, 2000.
Treaty Between the United States of America and the Government of the 
        Arab Republic of Egypt on Mutual Legal Assistance in Criminal 
        Matters, signed at Cairo on May 3, 1998, and a Related Exchange 
        of Diplomatic Notes. T. Doc. 106-19 reported on February 2, 
        2000. Exec. Rept. 106-24 reported with one understanding, one 
        declaration and two provisos on October 4, 2000. Advice and 
        consent given on October 18, 2000.
Treaty Between the United States of America and the Government of 
        Romania on Mutual Legal Assistance in Criminal Matters, signed 
        at Washington on May 26, 1999. T. Doc. 106-20 reported on 
        February 3, 2000. Exec. Rept. 106-24 reported with one 
        understanding, one declaration and two provisos on October 4, 
        2000. Advice and consent given on October 18, 2000.
International Plant Protection Convention (IPPC), adopted at the 
        Conference of the Food and Agriculture Organization (FAO) of 
        the United Nations at Rome on November 17, 1997. T. Doc. 106-23 
        reported on March 23, 2000. Exec. Rept. 106-27 reported with 
        three understandings, one declaration and two provisos on 
        October 5, 2000. Advice and consent given on October 18, 2000.
Extradition Treaty Between the Government of the United States of 
        America and the Government of the Republic of South Africa, 
        signed at Washington on September 16, 1999. T. Doc. 106-24 
        reported on May 18, 2000. Exec. Rept. 106-26 reported with one 
        understanding, one declaration and one proviso on October 4, 
        2000. Advice and consent given on October 18, 2000.
Treaty Between the Government of the United States of America and the 
        Government of the State of Bahrain Concerning the Encouragement 
        and Reciprocal Protection of Investment, with Annex, signed at 
        Washington on September 29, 1999. T. Doc. 106-25 reported on 
        May 23, 2000. Exec. Rept. 106-23 reported with one declaration 
        and one proviso on October 4, 2000. Advice and consent given on 
        October 18, 2000.
Treaty Between the Government of the United States of America and the 
        Government of the Republic of Bolivia Concerning the 
        Encouragement and Reciprocal Protection of Investment, with 
        Annex and Protocol, signed at Santiago, Chile, on April 17, 
        1998. T. Doc. 106-26 reported on May 23, 2000. Exec. Rept. 106-
        23 reported with one declaration and one proviso on October 4, 
        2000. Advice and consent given on October 18, 2000.
Treaty Between the Government of the United States of America and the 
        Government of the Republic of Honduras Concerning the 
        Encouragement and Reciprocal Protection of Investment, with 
        Annex and Protocol, signed at Denver on July 1, 1995. T. Doc. 
        106-27 reported on May 23, 2000. Exec. Rept. 106-23 reported 
        with one declaration and one proviso on October 4, 2000. Advice 
        and consent given on October 18, 2000.
Treaty Between the Government of the United States of America and the 
        Government of the Republic of El Salvador Concerning the 
        Encouragement and Reciprocal Protection of Investment, with 
        Annex and Protocol, signed at San Salvador on March 10, 1999. 
        T. Doc. 106-28 reported on May 23, 2000. Exec. Rept. 106-23 
        reported with one declaration and one proviso on October 4, 
        2000. Advice and consent given on October 18, 2000.
Treaty Between the Government of the United States of America and the 
        Government of the Republic of Croatia Concerning the 
        Encouragement and Reciprocal Protection of Investment, with 
        Annex and Protocol, signed at Zagreb on July 13, 1996. T. Doc. 
        106-29 reported on May 23, 2000. Exec. Rept. 106-23 reported 
        with one declaration and one proviso on October 4, 2000. Advice 
        and consent given on October 18, 2000.
Treaty Between the Government of the United States of America and the 
        Government of the Hashemite Kingdom of Jordan Concerning the 
        Encouragement and Reciprocal Protection of Investment, with 
        Annex and Protocol, signed at Amman on July 2, 1997. T. Doc. 
        106-30 reported on May 23, 2000. Exec. Rept. 106-23 reported 
        with one declaration and one proviso on October 4, 2000. Advice 
        and consent given on October 18, 2000.
Treaty Between the Government of the United States of America and the 
        Government of Mozambique Concerning the Encouragement and 
        Reciprocal Protection of Investment, with Annex and Protocol, 
        signed at Washington on December 1, 1998. T. Doc. 106-31 
        reported on May 23, 2000. Exec. Rept. 106-23 reported with one 
        declaration and one proviso on October 4, 2000. Advice and 
        consent given on October 18, 2000.
Extradition Treaty with the Government of the United States of America 
        and the Government of the Democratic Socialist Republic of Sri 
        Lanka, signed at Washington on September 30, 1999. T. Doc. 106-
        34 reported on June 27, 2000. Exec. Rept. 106-26 reported with 
        one understanding, one declaration and one proviso on October 
        4, 2000. Advice and consent given on October 18, 2000.
Treaty Between the Government of the United States of America and the 
        Government of the Republic of Cyprus on Mutual Legal Assistance 
        in Criminal Matters, signed at Nicosia on December 20, 1999. T. 
        Doc. 106-35 reported on July 13, 2000. Exec. Rept. 106-24 
        reported with one understanding, one declaration and two 
        provisos on October 4, 2000. Advice and consent given on 
        October 18, 2000.
Treaty Between the Government of the United States of America and the 
        Government of the Republic of South Africa on Mutual Legal 
        Assistance in Criminal Matters, signed at Washington on 
        September 16, 1999. T. Doc. 106-36 reported on July 13, 2000. 
        Exec. Rept. 106-24 reported with one understanding, one 
        declaration and two provisos on October 4, 2000. Advice and 
        consent given on October 18, 2000.
Extradition Treaty Between the Government of the United States of 
        America and the Government of Belize, signed at Belize on March 
        30, 2000. T. Doc. 106-38 reported on July 27, 2000. Exec. Rept. 
        106-26 reported with one understanding, one declaration and one 
        proviso on October 4, 2000. Advice and consent given on October 
        18, 2000.
Treaty Between the Government of the United States of America and the 
        Government of the United Mexican States on the Delimitation of 
        the Continental Shelf in the Western Gulf of Mexico beyond 200 
        nautical miles. T. Doc. 106-39 reported on July 27, 2000. Exec. 
        Rept. 106-19 reported with one declaration and one proviso on 
        September 29, 2000. Advice and consent given on October 18, 
        2000.
Treaty Between the Government of the United States of America and the 
        Government of the Republic of Costa Rica for the Return of 
        Stolen, Embezzled, or Appropriated Vehicles and Aircraft, with 
        Annexes and a Related Exchange of Notes, signed at San Jose on 
        July 2, 1999. T. Doc. 106-40 reported on September 5, 2000. 
        Exec. Rept. 106-22 reported with one declaration and one 
        proviso on September 29, 2000. Advice and consent given on 
        October 18, 2000.
Treaty Between the Government of the United States of America and the 
        Government of the Republic of Lithuania for the Encouragement 
        and Reciprocal Protection of Investment, with Annex and 
        Protocol, signed at Washington on January 14, 1998. T. Doc. 
        106-42 reported on September 5, 2000. Exec. Rept. 106-23 
        reported with one declaration and one proviso on October 4, 
        2000. Advice and consent given on October 18, 2000.
Protocol Amending the 1950 Consular Convention Between the United 
        States of America and Ireland, signed at Washington on June 16, 
        1998. T. Doc. 106-43 reported on September 5, 2000. Exec. Rept. 
        106-20 reported with one declaration and one proviso on 
        September 29, 2000. Advice and consent given on October 18, 
        2000.
Treaty Between the United States of America and the Government of the 
        Republic of Panama for the Return of Stolen, Robbed, or 
        Converted Vehicles and Aircraft, with Annexes, signed at Panama 
        on June 6, 2000, and a Related Exchange of Notes of July 25, 
        2000. T. Doc. 106-44 reported on September 5, 2000. Exec. Rept. 
        106-22 reported with one declaration and one proviso on 
        September 29, 2000. Advice and consent given on October 18, 
        2000.
Protocol Between the Government of the United States of America and the 
        Government of the Republic of Panama Amending the Treaty 
        Concerning the Treatment and Protection of Investments of 
        October 27, 1982. Protocol was signed at Panama City on June 1, 
        2000. T. Doc. 106-46 reported on September 12, 2000. Exec. 
        Rept. 106-23 reported on October 4, 2000. Advice and consent 
        given on October 18, 2000.
Treaty Between the Government of the United States of America and the 
        Government of the Republic of Azerbaijan Concerning the 
        Encouragement and Reciprocal Protection of Investment, with 
        Annex, signed at Washington on August 1, 1997, together with an 
        Amendment to the Treaty Set Forth in an Exchange of Diplomatic 
        Notes dated August 8, 2000, and August 25, 2000. T. Doc. 106-47 
        reported with one declaration and one proviso on October 4, 
        2000. Exec. Rept. 106-23 reported on October 4, 2000. Advice 
        and consent given on October 18, 2000.
Inter-American Convention for the Protection and Conservation of Sea 
        Turtles, with Annexes, done at Caracas December 1, 1996 (the 
        ``Convention''), which was signed by the United States, subject 
        to ratification, on December 13, 1996. T. Doc. 105-48 reported 
        on May 22, 1998. Exec. Rept. 106-18 reported with three 
        understandings, five declarations, and two provisos on 
        September 5, 2000. Advice and consent given on September 20, 
        2000.
Convention on Protection of Children and Cooperation in Respect of 
        Intercountry Adoption, adopted and opened for signature at the 
        conclusion of the Seventeenth Session of the Hague Conference 
        on Private International Law on May 29, 1993. T. Doc. 105-51 
        reported on June 11, 1998. Exec. Rept. 106-14 reported with six 
        declarations. Advice and consent given on September 20, 2000.
Convention (No. 176) Concerning Safety and Health in Mines, adopted by 
        the International Labor Conference at its 82d Session in Geneva 
        on June 22, 1995. T. Doc. 106-8 reported on September 9, 1999. 
        Exec. Rept. 106-16 reported with two understandings, two 
        declarations and two provisos on September 5, 2000. Advice and 
        consent given on September 20, 2000.
Food Aid Convention 1999, which was open for signature at the U.N. 
        Headquarters, New York, from May 1 through June 30, 1999. The 
        Convention was signed by the United States on June 16, 1999. T. 
        Doc. 106-14 reported on October 13, 1999. Exec. Rept. 106-17 
        reported with three declarations and one proviso on September 
        5, 2000. Advice and consent given on September 20, 2000.
Inter-American Convention against Corruption (``the Convention''), 
        adopted and opened for signature at the Specialized Conference 
        of the Organization of American States (OAS) at Caracas, 
        Venezuela, on March 29, 1996. The Convention was signed by the 
        United States on June 27, 1996, at the twenty-seventh regular 
        session of the OAS General Assembly meeting in Panama City, 
        Panama. T. Doc. 105-39 reported on April 1, 1998. Exec. Rept. 
        106-15 reported with six understandings, one declaration, and 
        three provisos on June 30, 2000. Advice and consent given on 
        July 27, 2000.

1999

Convention Between the United States of America and the Republic of 
        Estonia for the Avoidance of Double Taxation and the Prevention 
        of Fiscal Evasion with Respect to Taxes on Income, signed at 
        Washington on January 15, 1998. T. Doc. 105-55 reported on June 
        26, 1998. Exec. Rept. 106-3 reported with one declaration and 
        one proviso on November 3, 1999. Advice and consent given on 
        November 5, 1999. Entered into force: December 30, 1999.
Convention Between the United States of America and the Republic of 
        Lithuania for the Avoidance of Double Taxation and the 
        Prevention of Fiscal Evasion with Respect to Taxes on Income, 
        signed at Washington on January 15, 1998. T. Doc. 105-56 
        reported on June 26, 1998. Exec. Rept. 106-4 reported with one 
        declaration and one proviso on November 3, 1999. Advice and 
        consent given on November 5, 1999. Entered into force: December 
        30, 1999.
Convention Between the United States of America and the Republic of 
        Latvia for the Avoidance of Double Taxation and the Prevention 
        of Fiscal Evasion with Respect to Taxes on Income, signed at 
        Washington on January 15, 1998. T. Doc. 105-57 reported on June 
        26, 1998. Exec. Rept. 106-5 reported with one declaration and 
        one proviso on November 3, 1999. Advice and consent given on 
        November 5, 1999. Entered into force: December 30, 1999.
The Extradition Treaty Between the Government of the United States of 
        America and the Government of the Republic of Korea, signed at 
        Washington on June 9, 1998. T. Doc. 106-2 reported on March 2, 
        1999. Exec. Rept. 106-13 reported with one understanding, one 
        declaration and one proviso on November 3, 1999. Advice and 
        consent given on November 5, 1999. Entered into force: December 
        20, 1999.
Convention Between the Government of the United States of America and 
        the Government of the Republic of Venezuela for the Avoidance 
        of Double Taxation and the Prevention of Fiscal Evasion with 
        Respect to Taxes on Income and Capital, together with a 
        Protocol, signed at Caracas on January 25, 1999. T. Doc. 106-3 
        reported on June 29, 1999. Exec. Rept. 106-6 reported with two 
        understandings, two declarations and one proviso on November 3, 
        1999. Advice and consent given on November 5, 1999. Entered 
        into force: December 30, 1999.
Convention (No. 182) Concerning the Prohibition and Immediate Action 
        for the Elimination of the Worst Forms of Child Labor, adopted 
        by the International Labor Conference at its 87th Session in 
        Geneva on June 17, 1999. T. Doc. 106-5 reported on August 5, 
        1999. Exec. Rept. 106-12 reported with two understandings, one 
        declaration and one proviso on November 3, 1999. Advice and 
        consent given on November 5, 1999.
Convention Between the United States of America and the Republic of 
        Slovenia for the Avoidance of Double Taxation and the 
        Prevention of Fiscal Evasion with Respect to Taxes on Income 
        and Capital, signed at Ljubljana on June 21, 1999. T. Doc. 106-
        9 reported on September 13, 1999. Exec. Rept. 106-7 reported 
        with one reservation, one understanding, one declaration and 
        one proviso on November 3, 1999. Advice and consent given on 
        November 5, 1999.
Convention Between the Government of the United States of America and 
        the Government of the Italian Republic for the Avoidance of 
        Double Taxation with Respect to Taxes on Income and the 
        Prevention of Fraud or Fiscal Evasion, signed at Washington on 
        August 25, 1999, together with a Protocol. T. Doc. 106-11 
        reported on September 21, 1999. Exec. Rept. 106-8 reported with 
        one reservation, one understanding, one declaration and one 
        proviso on November 3, 1999. Advice and consent given on 
        November 5, 1999.
Convention Between the Government of the United States of America and 
        the Government of the Kingdom of Denmark for the Avoidance of 
        Double Taxation and the Prevention of Fiscal Evasion with 
        Respect to Taxes on Income, signed at Washington on August 19, 
        1999, together with a Protocol. Treaty Doc. 106-12 reported on 
        September 21, 1999. Exec. Rept. 106-9 reported with one 
        declaration and one proviso on November 3, 1999. Advice and 
        consent given on November 5, 1999. Entered into force: March 
        31, 2000.
Protocol Amending the Convention Between the United States of America 
        and the Federal Republic of Germany for the Avoidance of Double 
        Taxation with Respect to Taxes on Estates, Inheritances, and 
        Gifts, signed at Bonn on December 3, 1980, signed at Washington 
        on December 14, 1998. T. Doc. 106-13 reported on September 21, 
        1999. Exec. Rept. 106-10 reported with one declaration and one 
        proviso on November 3, 1999. Advice and consent given on 
        November 5, 1999.
Convention Amending the Convention Between the Government of the United 
        States of America and the Government of Ireland for the 
        Avoidance of Double Taxation and the Prevention of Fiscal 
        Evasion with Respect to Taxes on Income and Capital Gains, 
        signed at Dublin on July 28, 1997. T. Doc. 106-15 reported on 
        October 29, 1999. Exec. Rept. 106-11 reported with one 
        declaration and one proviso on November 3, 1999. Advice and 
        consent given on November 5, 1999.
Protocols to the 1980 Convention on Prohibitions or Restrictions on the 
        Use of Certain Conventional Weapons Which May Be Deemed to Be 
        Excessively Injurious or to Have Indiscriminate Effects: (A) 
        Amended Protocol on Prohibitions or Restrictions on the Use of 
        Mines, Booby-Traps and Other Devices (Protocol II or the 
        Amended Mines Protocol); (B) Protocol on Prohibitions or 
        Restrictions on the Use of Incendiary Weapons (Protocol III or 
        the Incendiary Weapons Protocol); and (C) Protocol on Blinding 
        Laser Weapons (Protocol IV). T. Doc. 105-1 reported on January 
        7, 1997. Exec. Rept. 105-21 reported Protocol II with one 
        reservation, nine understandings and 14 conditions, with 
        minority views, on October 10, 1998. Exec. Rept. 106-2 reported 
        Protocol II with one reservation, nine understandings and 13 
        conditions. Advice and consent on Protocol II given on May 20, 
        1999. Protocol IV entered into force: July 30, 1998.
Convention on Nuclear Safety, done at Vienna on September 20, 1994. T. 
        Doc. 104-6 reported on May 11, 1995. Exec. Rept. 106-1 reported 
        with six conditions and two understandings on March 24, 1999. 
        Advice and consent given on March 25, 1999. Entered into force: 
        July 10, 1999.

1998

Agreement Between the Government of the United States of America and 
        the Government of Hong Kong on Mutual Legal Assistance in 
        Criminal Matters, with Annex, signed at Hong Kong on April 15, 
        1997. T. Doc. 105-6 reported on May 6, 1997. Exec. Rept. 105-22 
        reported with one understanding, one declaration and two 
        provisos on October 14, 1998. Advice and consent given on 
        October 21, 1998. Entered into force: January 21, 2000.
Agreement Between the Government of the United States of America and 
        the Government of Hong Kong for the Transfer of Sentenced 
        Persons, signed at Hong Kong on April 15, 1997. T. Doc. 105-7 
        reported on May 6, 1997. Exec. Rept. 105-24 reported with one 
        declaration and one proviso on October 14, 1998. Advice and 
        consent given on October 21, 1998. Entered into force: April 
        21, 1999.
Extradition Treaty Between the United States of America and the 
        Government of the Grand Duchy of Luxembourg, signed at 
        Washington on October 1, 1996. T. Doc. 105-10 reported on July 
        8, 1997. Exec. Rept. 105-23 reported with one understanding, 
        one declaration and one proviso on October 14, 1998. Advice and 
        consent given on October 21, 1998.
Treaty Between the Government of the United States of America and the 
        Government of the Grand Duchy of Luxembourg on Mutual Legal 
        Assistance in Criminal Matters, signed at Washington on March 
        13, 1997, and a Related Exchange of Notes. T. Doc. 105-11 
        reported on July 8, 1997. Exec. Rept. 105-22 reported with one 
        understanding, one declaration and two provisos on October 14, 
        1998. Advice and consent given on October 21, 1998.
Treaty Between the United States of America and the Government of the 
        Republic of Poland on Mutual Legal Assistance in Criminal 
        Matters, signed at Washington on July 10, 1996. T. Doc. 105-12 
        reported on July 8, 1997. Exec. Rept. 105-22 reported with one 
        understanding, one declaration and two provisos on October 14, 
        1998. Advice and consent given on October 21, 1998.
Extradition Treaty Between the United States of America and France, 
        signed at Paris on April 23, 1996. T. Doc. 105-13 reported on 
        July 9, 1997. Exec. Rept. 105-23 reported with one 
        understanding, one declaration and one proviso on October 14, 
        1998. Advice and consent given on October 21, 1998.
Extradition Treaty Between the United States of America and the 
        Republic of Poland, signed at Washington on July 10, 1996. T. 
        Doc. 105-14 reported on July 9, 1997. Exec. Rept. 105-23 
        reported with one understanding, one declaration and one 
        proviso on October 14, 1998. Advice and consent given on 
        October 21, 1998. Entered into force: September 17, 1999.
Third Supplementary Extradition Treaty Between the United States of 
        America and the Kingdom of Spain, signed at Madrid on March 12, 
        1996. T. Doc. 105-15 reported on July 10, 1997. Exec. Rept. 
        105-23 reported with one understanding, one declaration and one 
        proviso on October 14, 1998. Advice and consent given on 
        October 21, 1998. Entered into force: July 25, 1999.
Extradition Treaty Between the Government of the United States of 
        America and the Government of the Republic of Cyprus, signed at 
        Washington on June 17, 1996. T. Doc. 105-16 reported on July 
        29, 1997. Exec. Rept. 105-23 reported with one understanding, 
        one declaration and one proviso on October 14, 1998. Advice and 
        consent given on October 21, 1998. Entered into force: 
        September 14, 1999.
World Intellectual Property Organization Copyright Treaty and the World 
        Intellectual Property Organization Performances and Phonograms 
        Treaty, done at Geneva on December 20, 1996, and signed by the 
        United States on April 12, 1997. T. Doc. 105-17 reported on 
        July 29, 1997. Exec. Rept. 105-25 reported with one 
        reservation, two declarations and three provisos on October 14, 
        1998. Advice and consent given on October 21, 1998.
Extradition Treaty Between the United States of America and the 
        Argentine Republic, signed at Buenos Aires on June 10, 1997. T. 
        Doc. 105-18 reported on July 30, 1997. Exec. Rept. 105-23 
        reported with one understanding, one declaration and one 
        proviso on October 14, 1998. Advice and consent given on 
        October 21, 1998. Entered into force: June 15, 2000.
Extradition Treaties Between the Government of the United States of 
        America and the governments of six countries comprising the 
        Organization of Eastern Caribbean States: Antigua and Barbuda, 
        signed at St. John's on June 3, 1996; Dominica, signed at 
        Roseau on October 10, 1996; Grenada, signed at St. George's on 
        May 30, 1996; St. Lucia, signed at Castries on April 18, 1996; 
        St. Kitts and Nevis, signed at Basseterre on September 18, 
        1996; and St. Vincent and the Grenadines, signed at Kingstown 
        on August 15, 1996. T. Doc. 105-19 reported on July 30, 1997. 
        Exec. Rept. 105-23 reported with one understanding, one 
        declaration and one proviso on October 14, 1998. Advice and 
        consent given on October 21, 1998. Entered into force with 
        Antigua and Barbuda: July 1, 1999. Entered into force with St. 
        Vincent and the Grenadines: September 8, 1999. Entered into 
        force with Grenada: September 14, 1999. Entered into force with 
        St. Lucia: February 2, 2000. Entered into force with St. Kitts 
        and Nevis: February 23, 2000. Entered into force with Dominica: 
        May 25, 2000.
Extradition Treaty Between the Government of the United States of 
        America and the Government of Barbados, signed at Bridgetown on 
        February 28, 1996. T. Doc. 105-20 reported on July 31, 1997. 
        Exec. Rept. 105-23 reported with one understanding, one 
        declaration and one proviso on October 14, 1998. Advice and 
        consent given on October 21, 1998. Entered into force: March 3, 
        2000.
Extradition Treaty Between the Government of the United States of 
        America and the Government of Trinidad and Tobago, signed at 
        Port of Spain on March 4, 1996. T. Doc. 105-21 reported on July 
        31, 1997. Exec. Rept. 105-23 reported with one understanding, 
        one declaration and one proviso on October 14, 1998. Advice and 
        consent given on October 21, 1998. Entered into force: November 
        29, 1999.
Treaty Between the Government of the United States of America and the 
        Government of Trinidad and Tobago on Mutual Legal Assistance in 
        Criminal Matters, signed at Port of Spain on March 4, 1996. T. 
        Doc. 105-22 reported on September 3, 1997. Exec. Rept. 105-22 
        reported with one understanding, one declaration and two 
        provisos on October 14, 1998. Advice and consent given on 
        October 21, 1998. Entered into force: November 29, 1999.
Treaty Between the Government of the United States of America and the 
        Government of Barbados on Mutual Legal Assistance in Criminal 
        Matters, signed at Bridgetown on February 28, 1996. T. Doc. 
        105-23 reported on September 3, 1997. Exec. Rept. 105-22 
        reported with one understanding, one declaration and two 
        provisos on October 14, 1998. Advice and consent given on 
        October 21, 1998. Entered into force: March 3, 2000.
Treaties on Mutual Legal Assistance Between the Government of the 
        United States of America and the governments of four countries 
        comprising the Organization of Eastern Caribbean States: 
        Antigua and Barbuda, signed at St. John's on October 31, 1996; 
        Dominica, signed at Roseau on October 10, 1996; Grenada, signed 
        at St. George's on May 30, 1996; and St. Lucia, signed at 
        Castries on April 18, 1996. T. Doc. 105-24 reported on 
        September 3, 1997. Exec. Rept. 105-22 reported with one 
        understanding, one declaration and two provisos on October 14, 
        1998. Advice and consent given on October 21, 1998. Entered 
        into force with Antigua and Barbuda: July 1, 1999. Entered into 
        force with Grenada: September 14, 1999. Entered into force with 
        St. Lucia: February 2, 2000. Entered into force with Dominica: 
        May 25, 2000.
Treaty Between the Government of the United States of America and the 
        Government of Australia on Mutual Legal Assistance in Criminal 
        Matters, signed at Washington on April 30, 1997. T. Doc. 105-27 
        reported on September 18, 1997. Exec. Rept. 105-22 reported 
        with one understanding, one declaration and two provisos on 
        October 14, 1998. Advice and consent given on October 21, 1998.
Extradition Treaty Between the Government of the United States of 
        America and the Government of the Republic of India, signed at 
        Washington on June 25, 1997. T. Doc. 105-30 reported on 
        September 23, 1997. Exec. Rept. 105-23 reported with one 
        understanding, one declaration and one proviso on October 14, 
        1998. Advice and consent given on October 21, 1998. Entered 
        into force: July 21, 1999.
Extradition Treaty Between the Government of the United States of 
        America and the Government of the Republic of Zimbabwe signed 
        at Harare on July 25, 1997. T. Doc. 105-33 reported on January 
        28, 1998. Exec. Rept. 105-23 reported with one understanding, 
        one declaration and one proviso on October 14, 1998. Advice and 
        consent given on October 21, 1998. Entered into force: April 
        26, 2000.
Treaty Between the United States of America and the Republic of Latvia 
        on Mutual Legal Assistance in Criminal Matters signed at 
        Washington on June 13, 1997. T. Doc. 105-34 reported on January 
        28, 1998. Exec. Rept. 105-22 reported with one understanding, 
        one declaration and two provisos on October 14, 1998. Advice 
        and consent (with Technical Amendment) given on October 21, 
        1998. Entered into force: September 17, 1999.
Treaty Between the Government of the United States of America and the 
        Government of the Republic of Venezuela on Mutual Legal 
        Assistance in Criminal Matters signed at Caracas on October 12, 
        1997. T. Doc. 105-38 reported on March 27, 1998. Exec. Rept. 
        105-22 reported with one understanding, one declaration and two 
        provisos on October 14, 1998. Advice and consent given on 
        October 21, 1998.
Treaty Between the Government of the United States of America and the 
        Government of the State of Israel on Mutual Legal Assistance in 
        Criminal Matters, signed at Tel Aviv on January 26, 1998, and a 
        Related Exchange of Notes signed the same date. T. Doc. 105-40 
        reported on April 2, 1998. Exec. Rept. 105-22 reported with one 
        understanding, one declaration and two provisos on October 14, 
        1998. Advice and consent given (with Technical Amendment) on 
        October 21, 1998. Entered into force: May 25, 1999.
Treaty Between the Government of the United States of America and the 
        Government of the Republic of Lithuania on Mutual Legal 
        Assistance in Criminal Matters, signed at Washington on January 
        16, 1998. T. Doc. 105-41 reported on April 20, 1998. Exec. 
        Rept. 105-22 reported with one understanding, one declaration 
        and two provisos on October 14, 1998. Advice and consent given 
        on October 21, 1998. Entered into force: August 26, 1999.
Treaty Between the Government of the United States of America and the 
        Government of the Federative Republic of Brazil on Mutual Legal 
        Assistance in Criminal Matters, signed at Brasilia on October 
        14, 1997. T. Doc. 105-42 reported on April 28, 1998. Exec. 
        Rept. 105-22 reported with one understanding, one declaration 
        and two provisos on October 14, 1998. Advice and consent given 
        on October 21, 1998.
Treaty Between the Government of the United States of America and the 
        Government of Saint Vincent and the Grenadines on Mutual Legal 
        Assistance in Criminal Matters, and a related Protocol, signed 
        at Kingstown on January 8, 1998. T. Doc. 105-44 reported on May 
        13, 1998. Exec. Rept. 105-22 reported with one understanding, 
        one declaration and two provisos on October 14, 1998. Advice 
        and consent given on October 21, 1998. Entered into force: 
        September 8, 1999.
Protocol to the Extradition Treaty Between the United States of America 
        and the United Mexican States of May 4, 1978, signed at 
        Washington on November 13, 1997. T. Doc. 105-46 reported on May 
        21, 1998. Exec. Rept. 105-23 reported with one understanding, 
        one declaration and one proviso on October 14, 1998. Advice and 
        consent given on October 21, 1998.
Treaty Between the United States of America and the Czech Republic on 
        Mutual Legal Assistance in Criminal Matters, signed at 
        Washington on February 4, 1998. T. Doc. 105-47 reported on May 
        22, 1998. Exec. Rept. 105-22 reported with one understanding, 
        one declaration and two provisos on October 14, 1998. Advice 
        and consent given on October 21, 1998.
Extradition Treaty Between the Government of the United States of 
        America and the Government of the Republic of Austria, signed 
        at Washington on January 8, 1998. T. Doc. 105-50 reported on 
        June 11, 1998. Exec. Rept. 105-23 reported with one 
        understanding, one declaration and one proviso on October 14, 
        1998. Advice and consent given on October 21, 1998. Entered 
        into force: January 1, 2000.
Treaty Between the Government of the United States of America and the 
        Government of the Republic of Estonia on Mutual Legal 
        Assistance in Criminal Matters, signed at Washington on April 
        2, 1998. T. Doc. 105-52 reported on June 19, 1998. Exec. Rept. 
        105-22 reported with one understanding, one declaration and two 
        provisos on October 14, 1998. Advice and consent given on 
        October 21, 1998.
Two Related Protocols, done at Montreal on September 25, 1975: 
        Additional Protocol No. 3 To Amend the Convention for the 
        Unification of Certain Rules Relating to International Carriage 
        by Air, signed at Warsaw on October 12, 1929, as Amended by 
        Protocols done at the Hague, September 28, 1955, and at 
        Guatemala City, March 8, 1971; and Montreal Protocol No. 4 to 
        Amend the same. Ex. B, 95-1 (T. Doc. 95-2A and B) reported on 
        January 14, 1977. Exec. Rept. 97-45 reported with conditions 
        and recommendations on December 16, 1981. Exec. Rept. 98-1 
        reported with three conditions on February 10, 1983. Exec. 
        Rept. 101-21 reported with three conditions and minority views 
        on June 28, 1990. Exec. Rept. 102-1 reported with three 
        conditions on February 5, 1991. Exec. Rept. 105-20 reported 
        with one declaration and two provisos on August 25, 1998. 
        Advice and consent given on Montreal Protocol No. 4 on 
        September 28, 1998 (Protocol No. 3 returned to the President 
        pursuant to resolution of ratification). Entered into force: 
        March 4, 1999.
Convention on Combating Bribery of Foreign Public Officials in 
        International Business Transactions (the ``Convention''), 
        adopted at Paris on November 21, 1997, by a conference held 
        under the auspices of the Organization for Economic Cooperation 
        and Development (OECD). The Convention was signed at Paris on 
        December 17, 1997, by the United States and 32 other nations. 
        T. Doc. 105-43 reported on May 4, 1998. Exec. Rept. 105-19 
        reported with one understanding, one declaration and three 
        provisos on July 16, 1998. Advice and consent given on July 31, 
        1998. Entered into force: February 15, 1999.
[Amendments to the] Convention on the International Maritime 
        Organization. Original Convention signed at Geneva, March 6, 
        1948 (IMO Convention). Amendments reported in T. Doc. 104-36, 
        October 1, 1996. Exec. Rept. 105-18 reported with one 
        declaration and one proviso on June 19, 1998. Advice and 
        consent given on June 26, 1998.
International Convention for the Protection of New Varieties of Plants 
        of December 2, 1961, as revised at Geneva on November 10, 1972, 
        on October 23, 1978, and on March 19, 1991, and signed by the 
        United States on October 25, 1991. T. Doc. 104-17 reported on 
        September 5, 1995. Exec. Rept. 105-15 reported with one 
        reservation, two declarations and one proviso, on June 19, 
        1998. Advice and consent given on June 26, 1998.
Grains Trade Convention and Food Aid Convention Constituting the 
        International Grains Agreement, 1995, signed by the United 
        States on June 26, 1995. T. Doc. 105-4 reported on April 7, 
        1997. Exec. Rept. 105-16 reported with one declaration and one 
        proviso on June 19, 1998. Advice and consent given on June 26, 
        1998. [International Grains Agreement, 1995, entered into force 
        July 1, 1995.]
Trademark Law Treaty, done at Geneva on October 27, 1994, with 
        Regulations, signed by the United States on October 28, 1994. 
        T. Doc. 105-35 reported on January 29, 1998. Exec. Rept. 105-17 
        reported with two declarations and one proviso on June 19, 
        1998. Advice and consent given on June 26, 1998.
Protocols to the North Atlantic Treaty of 1949 on the Accession of 
        Poland, Hungary, and the Czech Republic, opened for signature 
        at Brussels on December 16, 1997, and signed on behalf of the 
        United States of America and other parties to the North 
        Atlantic Treaty. T. Doc. 105-36 reported on February 11, 1998. 
        Exec. Rept. 105-14 reported with seven declarations and four 
        conditions on March 6, 1998. Advice and consent given on April 
        30, 1998. Entered into force: December 4, 1998.

1997

Protocol Amending the Convention Between the United States of America 
        and Canada with Respect to Taxes on Income and on Capital, 
        signed at Washington on September 26, 1980 as Amended by the 
        Protocols signed on June 14, 1983, March 28, 1984, and March 
        17, 1995, signed at Ottawa on July 29, 1997. T. Doc. 105-29 
        reported on September 23, 1997. Exec. Rept. 105-12 reported 
        with one declaration and one proviso on October 30, 1997. 
        Advice and consent given on October 31, 1997. Entered into 
        force: December 16, 1997.
Agreement Between the Government of the United States of America and 
        the Government of the Republic of Turkey for the Avoidance of 
        Double Taxation and the Prevention of Fiscal Evasion with 
        Respect to Taxes on Income, together with a Related Protocol, 
        signed at Washington on March 28, 1996. T. Doc. 104-30 reported 
        on September 3, 1996. Exec. Rept. 105-6 reported with one 
        declaration and one proviso, on October 30, 1997. Advice and 
        consent given on October 31, 1997. Entered into force: December 
        19, 1997.
Convention Between the Government of the United States of America and 
        the Republic of Austria for the Avoidance of Double Taxation 
        and the Prevention of Fiscal Evasion with Respect to Taxes on 
        Income, signed at Washington on May 31, 1996. T. Doc. 104-31 
        reported on September 3, 1996. Exec. Rept. 105-7 reported with 
        one understanding, two declarations, and one proviso, on 
        October 30, 1997. Advice and consent given on October 31, 1997. 
        Entered into force: February 1, 1998.
Convention Between the Government of the United States of America and 
        the Government of the Grand Duchy of Luxembourg for the 
        Avoidance of Double Taxation and the Prevention of Fiscal 
        Evasion with Respect to Taxes on Income and Capital, signed at 
        Luxembourg on April 3, 1996. T. Doc. 104-33 reported on 
        September 4, 1996. Exec. Rept. 105-8 reported with one 
        reservation, two declarations, and one proviso, on October 30, 
        1997. Advice and consent given on October 31, 1997.
Convention Between the Government of the United States of America and 
        the Government of the Kingdom of Thailand for the Avoidance of 
        Double Taxation and the Prevention of Fiscal Evasion with 
        Respect to Taxes on Income, signed at Bangkok on November 26, 
        1996. T. Doc. 105-2 reported on January 28, 1997. Exec. Rept. 
        105-9 reported with one declaration and one proviso on October 
        30, 1997. Advice and consent given on October 31, 1997. Entered 
        into force: December 15, 1997.
Convention Between the Government of the United States of America and 
        the Swiss Confederation for the Avoidance of Double Taxation 
        with Respect to Taxes on Income, signed at Washington on 
        October 2, 1996, together with a Protocol to the Convention. T. 
        Doc. 105-8 reported on June 25, 1997. Exec. Rept. 105-10 
        reported with two declarations and one proviso on October 30, 
        1997. Advice and consent given on October 31, 1997. Entered 
        into force: December 19, 1997.
Convention Between the United States of America and the Republic of 
        South Africa for the Avoidance of Double Taxation and the 
        Prevention of Fiscal Evasion with Respect to Taxes on Income 
        and Capital Gains, signed at Cape Town on February 17, 1997. T. 
        Doc. 105-9 reported on June 26, 1997. Exec. Rept. 105-11 
        reported with one declaration and one proviso on October 30, 
        1997. Advice and consent given on October 31, 1997. Entered 
        into force: December 28, 1997.
Convention Between the United States of America and the Government of 
        Ireland for the Avoidance of Double Taxation and the Prevention 
        of Fiscal Evasion with Respect to Taxes on Income and Capital 
        Gains, signed at Dublin on July 28, 1997, together with a 
        Protocol and Exchange of Notes done on the same date. T. Doc. 
        105-31 reported on September 24, 1997. Exec. Rept. 105-13 
        reported with one understanding, two declarations and one 
        proviso on October 30, 1997. Advice and consent given on 
        October 31, 1997. Entered into force: December 17, 1997.
Constitution and Convention of the International Telecommunication 
        Union (ITU), with Annexes, signed at Geneva on December 22, 
        1992, and Amendments to the Constitution and Convention, signed 
        at Kyoto on October 14, 1994, together with declarations and 
        reservations by the United States as contained in the Final 
        Acts. T. Doc. 104-34 reported on September 13, 1996. Exec. 
        Rept. 105-3 reported with two understandings, two declarations, 
        and one proviso, on October 20, 1997. Advice and consent given 
        on October 23, 1997. Entered into force: October 26, 1997.
Protocol Between the United States and Canada Amending the 1916 
        Convention for the Protection of Migratory Birds in Canada and 
        the United States, with a Related Exchange of Notes, signed at 
        Washington on December 14, 1995. T. Doc. 104-28 reported on 
        August 2, 1996. Exec. Rept. 105-5 reported with one 
        understanding, one declaration, and one proviso, on October 22, 
        1997. Advice and consent given on October 23, 1997. Entered 
        into force: October 7, 1999.
Protocol Between the Government of the United States of America and the 
        Government of the United Mexican States Amending the Convention 
        for the Protection of Migratory Birds and Game Mammals, signed 
        at Mexico City on May 5, 1997. T. Doc. 105-26 reported on 
        September 15, 1997. Exec. Rept. 105-5 reported with one 
        declaration, one understanding, and one proviso on October 22, 
        1997. Advice and consent given on October 23, 1997. Entered 
        into force: December 30, 1999.
Treaty on Maritime Boundaries Between the United States of America and 
        the United Mexican States, signed at Mexico City on May 4, 
        1978. Ex. F, 96-1 (T. Doc. 96-6) reported on January 23, 1979. 
        Exec. Rept. 96-49 reported on August 5, 1980. Exec. Rept 105-4 
        reported with one declaration and one proviso on October 22, 
        1997. Advice and consent given on October 23, 1997. Entered 
        into force: November 13, 1997.
Agreement Between the Government of the United States of America and 
        the Government of Hong Kong for the Surrender of Fugitive 
        Offenders, signed at Hong Kong on December 20, 1996. T. Doc. 
        105-3 reported on March 3, 1997. Exec. Rept. 105-2 reported 
        with two understandings, two declarations and one proviso on 
        August 19, 1997. Advice and consent given on October 23, 1997. 
        Entered into force: January 21, 1998.
Document Agreed Among the States Parties to the Treaty on Conventional 
        Armed Forces in Europe (CFE) of November 19, 1990, adopted at 
        Vienna on May 31, 1996 (``the Flank Document''). Flank Document 
        is Annex A of the Final Document of the First CFE Review 
        Conference. T. Doc. 105-5 reported on April 7, 1997. Exec. 
        Rept. 105-1 reported with 14 conditions on May 9, 1997. Advice 
        and consent given on May 14, 1997. Entered into force: May 15, 
        1997.
Convention on Prohibition of the Development, Production, Stockpiling 
        and Use of Chemical Weapons and on Their Destruction. T. Doc. 
        103-21 reported on November 23, 1993. Exec. Rept. 104-33 
        reported with seven conditions and 11 declarations on September 
        11, 1996. Advice and consent given, in the form of amended 
        resolution of ratification with 28 conditions, on April 24, 
        1997. Entered into force: April 29, 1997.

1996

Convention Between the United States of America and the Government of 
        the Republic of Kazakhstan for the Avoidance of Double Taxation 
        and the Prevention of Fiscal Evasion with Respect to Taxes on 
        Income and Capital, together with the Protocol and the Two 
        Related Exchanges of Notes, signed at Almaty on October 24, 
        1993. T. Doc. 103-33 reported on September 19, 1994. Exec. 
        Rept. 104-34 reported with a proviso on September 25, 1996. 
        Advice and consent given on September 28, 1996. Entered into 
        force: December 30, 1996. [See also T. Doc. 104-15.]
Exchange of Notes dated at Washington July 10, 1995, relating to the 
        Convention Between the United States of America and the 
        Government of the Republic of Kazakhstan for the Avoidance of 
        Double Taxation and the Prevention of Fiscal Evasion with 
        Respect to Taxes on Income and Capital, together with Related 
        Protocol signed at Almaty on October 24, 1993. T. Doc. 104-15 
        reported on August 3, 1995. Exec. Rept. 104-34 reported with a 
        proviso on September 25, 1996. Advice and consent given on 
        September 28, 1996. Entered into force: December 30, 1996. [See 
        also T. Doc. 104-34.]
Protocol Between the United States of America and the Government of the 
        Kingdom of the Netherlands in Respect of the Netherlands 
        Antilles Amending Article VIII of the 1948 Convention with 
        Respect to Taxes on Income and Certain Other Taxes as 
        Applicable to the Netherlands Antilles, signed at Washington on 
        October 10, 1995. T. Doc. 104-23 reported on January 3, 1996. 
        Exec. Rept. 104-35 reported on September 25, 1996. Advice and 
        consent given on September 28, 1996. Entered into force: 
        December 30, 1996.
International Rubber Agreement, 1995, done at Geneva on February 17, 
        1995. T. Doc. 104-27 reported on June 19, 1996. Exec. Rept. 
        104-21 reported with one declaration on June 26, 1996. Advice 
        and consent given on September 25, 1996. Entered into force, 
        provisionally: February 6, 1997. Entered into force, 
        definitively: February 14, 1997.
Treaty Between the United States of America and the Republic of Korea 
        on Mutual Legal Assistance in Criminal Matters, signed at 
        Washington on November 23, 1993, together with a Related 
        Exchange of Notes. T. Doc. 104-1 reported on January 12, 1995. 
        Exec. Rept. 104-22 reported on July 30, 1996. Advice and 
        consent given on August 2, 1996. Entered into force: May 23, 
        1997.
Treaty Between the United States of America and the Government of the 
        United Kingdom of Great Britain and Northern Ireland on Mutual 
        Legal Assistance in Criminal Matters, signed at Washington on 
        January 6, 1994, together with a Related Exchange of Notes. T. 
        Doc. 104-2 reported on January 23, 1995. Exec. Rept. 104-23 
        reported on July 30, 1996. Advice and consent given on August 
        2, 1996. Entered into force: December 2, 1996.
Treaty Between the United States of America and the Government of the 
        Republic of Hungary on Extradition, signed at Budapest on 
        December 1, 1994. T. Doc. 104-5 reported on May 8, 1995. Exec. 
        Rept. 104-27 reported on July 30, 1996. Advice and consent 
        given on August 2, 1996. Entered into force: March 18, 1997.
Extradition Treaty Between the United States of America and the Kingdom 
        of Belgium signed at Brussels on April 27, 1987. T. Doc. 104-7 
        reported on July 12, 1995. Exec. Rept. 104-28 reported on July 
        30, 1996. Advice and consent given on August 2, 1996. Entered 
        into force: September 1, 1997.
Supplementary Treaty on Extradition Between the United States of 
        America and the Kingdom of Belgium To Promote the Repression of 
        Terrorism, signed at Brussels on April 27, 1987. T. Doc. 104-8 
        reported on June 12, 1995. Exec. Rept. 104-28 reported on July 
        30, 1996. Advice and consent given on August 2, 1996.
Extradition Treaty Between the United States of America and the 
        Government of the Swiss Confederation, signed at Washington on 
        November 14, 1990. T. Doc. 104-9 reported on June 12, 1995. 
        Exec. Rept. 104-32 reported on July 30, 1996. Advice and 
        consent given on August 2, 1996. Entered into force: September 
        10, 1997.
Extradition Treaty Between the United States of America and the 
        Government of the Republic of the Philippines, signed at Manila 
        on November 13, 1994. T. Doc. 104-16 reported on September 5, 
        1995. Exec. Rept. 104-29 reported on July 30, 1996. Advice and 
        consent given on August 2, 1996. Entered into force: November 
        22, 1996.
Treaty Between the United States of America and the Government of the 
        Republic of the Philippines on Mutual Legal Assistance in 
        Criminal Matters, signed at Manila on November 13, 1994. T. 
        Doc. 104-18 reported on September 5, 1995. Exec. Rept. 104-26 
        reported on July 30, 1996. Advice and consent given on August 
        2, 1996. Entered into force: November 22, 1996.
Treaty Between the United States of America and the Government of the 
        Republic of Hungary on Mutual Legal Assistance in Criminal 
        Matters, signed at Budapest on December 1, 1994. T. Doc. 104-20 
        reported on September 6, 1995. Exec. Rept. 104-25 reported on 
        July 30, 1996. Advice and consent given on August 2, 1996. 
        Entered into force: March 18, 1997.
Treaty Between the United States of America and the Government of the 
        Republic of Austria on Mutual Legal Assistance in Criminal 
        Matters, signed at Vienna on February 23, 1995. T. Doc. 104-21 
        reported on September 6, 1995. Exec. Rept. 104-24 reported on 
        July 30, 1996. Advice and consent given on August 2, 1996. 
        Entered into force: August 1, 1998.
Extradition Treaty Between the United States of America and the 
        Government of the Republic of Bolivia, signed at La Paz on June 
        27, 1995. T. Doc. 104-22 reported on October 10, 1995. Exec. 
        Rept. 104-31 reported on July 30, 1996. Advice and consent 
        given on August 2, 1996. Entered into force: November 21, 1996.
Extradition Treaty with Malaysia, signed at Kuala Lumpur on August 3, 
        1995. T. Doc. 104-26 reported on May 17, 1996. Exec. Rept. 104-
        30 reported on July 30, 1996. Advice and consent given on 
        August 2, 1996. Entered into force: June 2, 1997.
Treaty Between the United States of America and Jamaica Concerning the 
        Reciprocal Encouragement and Protection of Investment, with 
        Annex and Protocol, signed at Washington on February 4, 1994. 
        T. Doc. 103-35 reported on September 21, 1994. Exec. Rept. 104-
        11 reported on June 20, 1996. Advice and consent given on June 
        27, 1996. Entered into force: March 7, 1997.
Treaty Between the United States of America and the Republic of Belarus 
        Concerning the Encouragement and Reciprocal Protection of 
        Investment, with Annex, Protocol, and Related Exchange of 
        Letters, signed at Minsk on January 15, 1994. T. Doc. 103-36 
        reported on September 26, 1994. Exec. Rept. 104-12 reported on 
        June 20, 1996. Advice and consent given on June 27, 1996.
Treaty Between the United States of America and Ukraine Concerning the 
        Encouragement and Reciprocal Protection of Investment, with 
        Annex and Related Exchange of Letters, done at Washington on 
        March 4, 1994. T. Doc. 103-37 reported on September 27, 1994. 
        Exec. Rept. 104-13 reported on June 20, 1996. Advice and 
        consent given on June 27, 1996. Entered into force: November 
        16, 1996.
Treaty Between the United States of America and Mongolia Concerning the 
        Encouragement and Reciprocal Protection of Investment, with 
        Annex and Protocol, signed at Washington on October 6, 1994. T. 
        Doc. 104-10 reported on June 26, 1995. Exec. Rept. 104-15 
        reported on June 20, 1996. Advice and consent given on June 27, 
        1996. Entered into force: January 1, 1997.
Treaty Between the United States of America and the Government of the 
        Republic of Latvia Concerning the Encouragement and Reciprocal 
        Protection of Investment, with Annex and Protocol, signed at 
        Washington on January 13, 1995. T. Doc. 104-12 reported on July 
        10, 1995. Exec. Rept. 104-16 reported on June 20, 1996. Advice 
        and consent given on June 27, 1996. Entered into force: 
        December 26, 1996.
Treaty Between the United States of America and the Government of the 
        Republic of Georgia Concerning the Encouragement and Reciprocal 
        Protection of Investment, with Annex, signed at Washington on 
        March 7, 1994. T. Doc. 104-13 reported on July 10, 1995. Exec. 
        Rept. 104-17 reported on June 20, 1996. Advice and consent 
        given on June 27, 1996. Entered into force: August 17, 1997.
Treaty Between the United States of America and the Government of the 
        Republic of Trinidad and Tobago Concerning the Encouragement 
        and Reciprocal Protection of Investment, with Annex and 
        Protocol, signed at Washington on September 26, 1994. T. Doc. 
        104-14 reported on July 11, 1995. Exec. Rept. 104-18 reported 
        on June 20, 1996. Advice and consent given on June 27, 1996. 
        Entered into force: December 26, 1996.
Treaty Between the United States of America and the Government of the 
        Republic of Estonia Concerning the Encouragement and Reciprocal 
        Protection of Investment, with Annex, done at Washington on 
        April 19, 1994. T. Doc. 103-38 reported on September 27, 1994. 
        Exec. Rept. 104-14 reported on June 20, 1996. Advice and 
        consent given on June 27, 1996. Entered into force: February 
        16, 1997.
Treaty Between the United States of America and the Government of the 
        Republic of Albania Concerning the Encouragement and Reciprocal 
        Protection of Investment, with Annex and Protocol, signed at 
        Washington on January 11, 1995. T. Doc. 104-19 reported on 
        September 6, 1995. Exec. Rept. 104-19 reported on June 20, 
        1996. Advice and consent given on June 27, 1996. Entered into 
        force: January 4, 1998.
Agreement for the Implementation of the Provisions of the United 
        Nations Convention on the Law of the Sea of 10 December 1982 
        Relating to the Conservation and Management of Straddling Fish 
        Stocks and Highly Migratory Fish Stocks, with Annexes, adopted 
        on August 4, 1995, and signed by the United States on December 
        4, 1995. T. Doc. 104-24 reported on February 20, 1996. Exec. 
        Rept. 104-20 reported with one declaration on June 26, 1996. 
        Advice and consent given on June 27, 1996.
Treaty Between the United States of America and the Russian Federation 
        of Further Reduction and Limitation of Strategic Offensive Arms 
        (the START II Treaty), signed at Moscow on January 3, 1993 
        (including Elimination and Conversion Protocol. Exhibitions and 
        Inspections Protocol; and Memorandum of Attribution). T. Doc. 
        103-1 reported on January 20, 1993. Exec. Rept. 104-10 reported 
        with additional views on December 15, 1995. Advice and consent 
        given on January 26, 1996.

1995

Convention Between the United States of America and the Portuguese 
        Republic for the Avoidance of Double Taxation and the 
        Prevention of Fiscal Evasion with Respect to Taxes on Income 
        and Capital, together with a Related Protocol, signed at 
        Washington on September 6, 1994. T. Doc. 103-34 reported on 
        September 19, 1994. Exec. Rept. 104-8 reported on August 10, 
        1995. Advice and consent given on August 11, 1995. Entered into 
        force: December 18, 1995.
Convention Between the United States of America and the Government of 
        Sweden for the Avoidance of Double Taxation and the Prevention 
        of Fiscal Evasion with Respect to Taxes on Income and Capital, 
        signed at Stockholm on September 1, 1994, together with a 
        Related Exchange of Notes. T. Doc. 103-29 reported on September 
        14, 1994. Exec. Rept. 104-4 reported on August 10, 1995. Advice 
        and consent given on August 11, 1995. Entered into force: 
        October 26, 1995.
Convention Between the United States of America and the Government of 
        Ukraine for the Avoidance of Double Taxation and the Prevention 
        of Fiscal Evasion with Respect to Taxes on Income and Capital, 
        with Protocol, signed at Washington on March 4, 1994. T. Doc. 
        103-30 reported on September 14, 1994. Exec. Rept. 104-5 
        reported on August 10, 1995. Advice and consent given on August 
        11, 1995. Entered into force: November 16, 1996. [See also T. 
        Doc. 104-11.]
Exchange of Notes dated at Washington May 26 and June 6, 1995, Relating 
        to the Convention Between the United States of America and the 
        Government of Ukraine for the Avoidance of Double Taxation and 
        the Prevention of Fiscal Evasion with Respect to Taxes on 
        Income and Capital, with Protocol, signed at Washington on 
        March 4, 1994. T. Doc. 104-11 reported on June 30, 1995. Exec. 
        Rept. 104-5 reported on August 10, 1995. Advice and consent 
        given on August 11, 1995. [See also T. Doc. 103-30.]
Additional Protocol that Modifies the Convention Between the United 
        States of America and the Government of the United Mexican 
        States for the Avoidance of Double Taxation and the Prevention 
        of Fiscal Evasion with Respect to Taxes on Income and Capital, 
        signed at Washington on September 18, 1992. Additional Protocol 
        signed at Mexico City on September 8, 1994. T. Doc. 103-31 
        reported on September 19, 1994. Exec. Rept. 104-6 reported on 
        August 10, 1995. Advice and consent given on August 11, 1995. 
        Entered into force: October 26, 1995.
Convention Between the United States of America and the Government of 
        the French Republic for the Avoidance of Double Taxation and 
        the Prevention of Fiscal Evasion with Respect to Taxes on 
        Income and Capital, signed at Paris on August 31, 1994, 
        together with Two Related Exchanges of Notes. T. Doc. 103-32 
        reported on September 19, 1994. Exec. Rept. 104-7 reported on 
        August 10, 1995. Advice and consent given on August 11, 1995. 
        Entered into force: December 30, 1995.
Revised Protocol Amending the Convention Between the United States and 
        Canada with Respect to Taxes on Income and Capital, signed at 
        Washington on September 28, 1980, as Amended by the Protocols 
        signed on June 14, 1983, and March 28, 1984. T. Doc. 104-4 
        reported on April 24, 1995. Exec. Rept. 104-9 reported on 
        August 10, 1995. Advice and consent given on August 11, 1995. 
        Entered into force: November 9, 1995.
Treaty Between the United States of America and the Republic of Panama 
        on Mutual Assistance in Criminal Matters, with Annexes and 
        Appendices, signed at Panama on April 11, 1991. T. Doc. 102-15 
        reported on October 24, 1991. Exec. Rept. 104-3 reported on May 
        5, 1995. Advice and consent given on May 16, 1995. Entered into 
        force: September 6, 1995.
Extradition Treaty Between the Government of the United States of 
        America and the Government of the Hashemite Kingdom of Jordan, 
        signed at Washington on March 28, 1995. T. Doc. 104-3 reported 
        on April 24, 1995. Exec. Rept. 104-2 reported on May 2, 1995. 
        Advice and consent given on May 3, 1995. Entered into force: 
        July 29, 1995.
Convention on Prohibitions or Restrictions on the Use of Certain 
        Conventional Weapons Which May Be Deemed To Be Excessively 
        Injurious or To Have Indiscriminate Effects, and Two 
        Accompanying Protocols on Non-Detectable Fragments (Protocol I) 
        and on Prohibitions or Restrictions on the Use of Mines, Booby-
        Traps and Other Devices (Protocol II). T. Doc. 103-25 reported 
        on May 12, 1994. Exec. Rept. 104-1 reported on March 22, 1995. 
        Advice and consent given on March 24, 1995. Entered into force: 
        September 24, 1995.

1994

Two Treaties Between the Government of the United States of America and 
        the Government of the United Kingdom of Great Britain and 
        Northern Ireland, both signed at London on November 5, 1993, on 
        the Delimitation in the Caribbean of a Maritime Boundary 
        Relating to: (A) the U.S. Virgin Islands and Anguilla; and (B) 
        Puerto Rico/U.S. Virgin Islands and the British Virgin Islands, 
        with Annex. T. Doc. 103-23 reported on March 9, 1994. Exec. 
        Rept. 103-35 reported on September 29, 1994. Advice and consent 
        given on October 6, 1994. Entered into force: June 1, 1995.
Headquarters Agreement Between the Government of the United States of 
        America and the Organization of American States, signed at 
        Washington on May 14, 1992. T. Doc. 102-40 reported on 
        September 21, 1992. Exec. Rept. 103-37 reported on September 
        30, 1994. Advice and consent given on October 6, 1994.
Agreement to Promote Compliance with International Conservation and 
        Management Measures by Fishing Vessels on the High Seas, Which 
        Was Adopted at Rome by Consensus by the Conference of the 
        United Nations Food and Agriculture Organization on November 
        24, 1993. T. Doc. 103-24 reported on April 26, 1994. Exec. 
        Rept. 103-32 reported on September 26, 1994. Advice and consent 
        given on October 6, 1994.
Certified Copy of the Convention (No. 150) Concerning Labor 
        Administration; Role, Functions and Organization, adopted by 
        the International Labor Conference at its 64th Session in 
        Geneva on June 7, 1978. T. Doc. 103-26 reported on August 2, 
        1994. Exec. Rept. 103-33 reported on September 26, 1994. Advice 
        and consent given on October 6, 1994. Entered into force: March 
        3, 1996.
Convention on the Conservation and Management of Pollock Resources in 
        the Central Bering Sea, with Annex, done at Washington on June 
        16, 1994. T. Doc. 103-27 reported on August 9, 1994. Exec. 
        Rept. 103-36 reported on September 29, 1994. Advice and consent 
        given on October 6, 1994. Entered into force: December 8, 1995.
Second Protocol Amending the 1975 Convention Between the Government of 
        the United States of America and the Government of the State of 
        Israel with Respect to Taxes on Income (as Amended by the 
        Protocol signed on May 30, 1980), signed at Jerusalem on 
        January 26, 1993. T. Doc. 103-16 reported on October 19, 1993. 
        Exec. Rept. 103-21 reported with an understanding and 
        declaration on November 18, 1993. Advice and consent given on 
        September 22, 1994. Entered into force: December 30, 1994.
International Convention on the Elimination of All Forms of Racial 
        Discrimination, done at New York on December 21, 1965. Signed 
        on behalf of the United States on September 23, 1966. Ex. C 95-
        2 reported on February 23, 1978. Exec. Rept. 103-29 reported on 
        June 2, 1994. Advice and consent given on June 24, 1994. 
        Entered into force for the United States: November 20, 1994.
``Protocol of Washington'' Adopted on December 14, 1992, by the 
        Sixteenth Special Session of the General Assembly of the 
        Organization of American States (OAS), and signed by the United 
        States on January 23, 1993, and the ``Protocol of Managua'' 
        Adopted by the Nineteenth Special Session of the OAS General 
        Assembly on June 10, 1993, and signed that day by the United 
        States. T. Doc. 103-22 reported on January 26, 1994. Exec. 
        Rept. 103-28 reported on May 5, 1994. Advice and consent given 
        on May 17, 1994.

1993

Protocol Amending the Convention Between the United States of America 
        and Barbados for the Avoidance of Double Taxation and the 
        Prevention of Fiscal Evasion with Respect to Taxes on Income 
        Signed on December 31, 1983, Which Protocol was signed at 
        Washington on December 18, 1991. T. Doc 102-41 reported on 
        September 30, 1992. Exec. Rept. 103-18 reported with a 
        reservation on November 18, 1993. Advice and consent given on 
        November 20, 1993. Entered into force: December 29, 1993.
Convention Between the United States of America and the Czech Republic 
        for the Avoidance of Double Taxation and the Prevention of 
        Fiscal Evasion with Respect to Taxes on Income and Capital, 
        signed at Prague on September 16, 1993. T. Doc. 102-17 reported 
        on October 21, 1993. Exec. Rept. 103-22 reported on November 
        18, 1993. Advice and consent given on November 20, 1993. 
        Entered into force: December 23, 1993.
Convention Between the United States of America and the Slovak Republic 
        for the Avoidance of Double Taxation and the Prevention of 
        Fiscal Evasion with Respect to Taxes on Income and Capital, 
        signed at Bratislava on October 8, 1993. T. Doc. 102-18 
        reported on October 21, 1993. Exec. Rept. 103-23 reported on 
        November 18, 1993. Advice and consent given on November 20, 
        1993. Entered into force: December 30, 1993.
Convention Between the United States of America and the Kingdom of the 
        Netherlands for the Avoidance of Double Taxation and the 
        Prevention of Fiscal Evasion with Respect to Taxes on Income 
        and Capital, signed at Washington on October 13, 1993. T. Doc. 
        102-19 reported on October 25, 1993. Exec. Rept. 103-19 
        reported on November 18, 1993. Advice and consent given on 
        November 20, 1993. Entered into force: December 1, 1993.
Convention Between the United States of America and the Russian 
        Federation for the Avoidance of Double Taxation and the 
        Prevention of Fiscal Evasion with Respect to Taxes on Income 
        and Capital, together with a Related Protocol, signed at 
        Washington on June 17, 1992. T. Doc. 102-39 reported on 
        September 8, 1992. Exec. Rept. 103-17 reported on November 18, 
        1993. Advice and consent given on November 20, 1993. Entered 
        into force: December 16, 1993.
Protocol Adopted June 5, 1992, by the Conference of Plenipotentiaries 
        of the Contracting Parties to the International Convention for 
        the Conservation of Atlantic Tunas (ICCAT), signed by the 
        United States on October 22, 1992, to Amend Paragraph 2 of 
        Article X of ICCAT. T. Doc. 103-4 reported on April 20, 1993. 
        Exec. Rept. 103-24 reported on November 19, 1993. Advice and 
        consent given on November 20, 1993. [Original convention 
        entered into force March 21, 1969.]
Convention Between the United States of America and the Kingdom of the 
        Netherlands for the Avoidance of Double Taxation and the 
        Prevention of Fiscal Evasion with Respect to Taxes on Income, 
        signed at Washington on December 18, 1992. T. Doc. 103-6 
        reported on May 12, 1993. Exec. Rept. 103-19 reported on 
        November 18, 1993. Advice and consent given on November 20, 
        1993. Entered into force: December 1, 1993.
Convention Between the United States of America and the Government of 
        the United Mexican States for the Avoidance of Double Taxation 
        and the Prevention of Fiscal Evasion with Respect to Taxes on 
        Income, together with a Related Protocol, signed at Washington 
        on September 18, 1992. T. Doc. 103-7 reported on May 20, 1993. 
        Exec. Rept. 103-20 reported with an understanding and a 
        reservation on November 18, 1993. Advice and consent, with 
        Executive Amendment, given on November 20, 1993. Entered into 
        force: December 28, 1993.
Convention on the Making of Plastic Explosives for the Purpose of 
        Detection, with Technical Annex, done at Montreal on March 1, 
        1991. T. Doc. 103-8 reported on June 29, 1993. Exec. Rept. 103-
        15 reported with a declaration on November 18, 1993. Advice and 
        consent, with Executive Amendment, given on November 20, 1993.
Amendment to the Montreal Protocol on Substances That Deplete the Ozone 
        Layer, adopted at Copenhagen on November 23-25, 1992, by the 
        Fourth Meeting of the Parties to the Montreal Protocol. T. Doc. 
        103-9 reported on July 20, 1993. Exec. Rept. 103-25 reported on 
        November 19, 1993. Advice and consent given on November 20, 
        1993. Entered into force: June 14, 1993.
Multilateral United Nations Convention on the Limitation Period in the 
        International Sale of Goods, done at New York on June 14, 1974, 
        together with the 1980 Protocol Amending that Convention, done 
        at Vienna on April 11, 1980. T. Doc. 103-10 reported on August 
        6, 1993. Exec. Rept. 103-16 reported with a declaration on 
        November 18, 1993. Advice and consent given on November 20, 
        1993.
Treaty Between the Government of the United States of America and the 
        Government of Romania Concerning the Reciprocal Encouragement 
        and Protection of Investment, with Protocol and Related 
        Exchanges of Letters, signed at Bucharest on May 28, 1992. T. 
        Doc. 102-36 reported on August 3, 1992. Exec. Rept. 103-7 
        reported on September 15, 1993. Advice and consent given on 
        November 17, 1993. Entered into force: January 15, 1994.
Treaty Between the United States of America and the Argentine Republic 
        Concerning the Reciprocal Encouragement and Protection of 
        Investment with Protocol, signed at Washington on November 14, 
        1991; and an Amendment to the Protocol Effected by Exchange of 
        Notes at Buenos Aires on August 24 and November 6, 1992. T. 
        Doc. 103-2 reported on January 21, 1993. Exec. Rept. 103-8 
        reported on September 15, 1993. Advice and consent given on 
        November 17, 1993. Entered into force: October 20, 1994.
Treaty Between the United States of America and the Republic of 
        Bulgaria Concerning the Encouragement and Reciprocal Protection 
        of Investment, with Protocol and Related Exchange of Letters, 
        signed at Washington on September 23, 1992. T. Doc. 103-3 
        reported on January 21, 1993. Exec. Rept. 103-9 reported on 
        September 15, 1993. Advice and consent given on November 17, 
        1993. Entered into force: June 2, 1994.
Treaty Between the United States of America and the Republic of 
        Kyrgyzstan Concerning the Encouragement and Reciprocal 
        Protection of Investment, signed at Washington on January 19, 
        1993. T. Doc. 103-13 reported on September 8, 1993. Exec. Rept. 
        103-12 reported on September 15, 1993. Advice and consent given 
        on November 17, 1993. Entered into force: January 12, 1994.
Treaty Between the United States of America and the Republic of Moldova 
        Concerning the Encouragement and Reciprocal Protection of 
        Investment, with Protocol and Related Exchange of Letters, 
        signed at Washington on April 21, 1993. T. Doc. 103-14 reported 
        on September 8, 1993. Exec. Rept. 103-13 reported on September 
        15, 1993. Advice and consent given on November 17, 1993. 
        Entered into force: November 25, 1994.
Treaty Between the United States of America and the Republic of Ecuador 
        Concerning the Encouragement and Reciprocal Protection of 
        Investment, with Protocol and Related Exchange of Letters, 
        signed at Washington on August 27, 1993. T. Doc. 103-15 
        reported on September 10, 1993. Exec. Rept. 103-14 reported on 
        September 15, 1993. Advice and consent given on November 17, 
        1993. Entered into force: May 11, 1997.
Treaty Between the United States of America and the Republic of 
        Kazakhstan Concerning the Reciprocal Encouragement and 
        Protection of Investment, signed at Washington on May 19, 1992. 
        T. Doc. 103-12 reported on September 8, 1993. Exec. Rept. 103-
        11 reported on September 15, 1993. Advice and consent given on 
        October 21, 1993. Entered into force: January 12, 1994.
Treaty on Open Skies, with Twelve Annexes, signed at Helsinki on March 
        24, 1992. T. Doc. 102-37 reported on August 12, 1992. Exec. 
        Rept. 103-5 reported on August 2, 1993. Advice and consent 
        given on August 6, 1993.


              APPENDIX 9.--TREATIES REJECTED BY THE SENATE

                              ----------                              

  January 5, 1993 to December 31, 2000 (103d, 104th, 105th, and 106th 
                              Congresses)
     (in reverse chronological order, by date of Senate action) \1\
---------------------------------------------------------------------------
    \1\ Based on legislative calendars of the Committee on Foreign 
Relations, U.S. Senate, various years.
---------------------------------------------------------------------------

1999

Comprehensive Nuclear Test-Ban Treaty, opened for signature and signed 
        by the United States at New York on September 24, 1996. Treaty 
        includes two Annexes, a Protocol, and two Annexes to the 
        Protocol. T. Doc. 105-28 reported on September 23, 1997. Senate 
        rejected by a vote of 48-51, 1 Present, on October 13, 1999. 
        The Treaty reverted to the Senate Foreign Relations Committee 
        at the end of the 106th Congress, where it remains pending.


 APPENDIX 10.--LETTER OF RESPONSE FROM ACTING DIRECTOR THOMAS GRAHAM, 
  JR. TO SENATOR PELL ACCEPTING THE NARROW INTERPRETATION OF THE ABM 
                                 TREATY

                              ----------                              

 United States Arms Control and Disarmament Agency,
                                            Washington, DC,
                                                     July 13, 1993.
The Hon. Claiborne Pell,
Chairman, Committee on Foreign Relations,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: On May 18, 1993, during hearings you chaired 
concerned START II, you asked whether it was the position of the 
Clinton administration that the narrow interpretation is the proper and 
legally correct interpretation of the ABM Treaty. I agreed to provide a 
response for the record. I am pleased to provide that answer in an 
enclosure to this letter.
    Because of the importance of this matter and your interest in it 
over the years, and in the expectation that the committee may desire to 
handle it in a special way, I want to draw your personal attention to 
this answer rather than simply transmitting it through routine 
channels. I am also advising other interested Members of Congress of 
the answer for the record. Please let me know if you have any further 
questions on this matter.
            Sincerely,
                                         Thomas Graham, Jr.
                                                   Acting Director.
Enclosure:

    Question: Would you please state, for the record, whether or not it 
is the position of the Clinton administration that the narrow 
interpretation is the proper and legally correct interpretation of the 
ABM Treaty?
    Answer: It is the position of the Clinton administration that the 
``narrow'' or ``traditional'' interpretation of the ABM Treaty is the 
correct interpretation and therefore that the ABM Treaty prohibits the 
development, testing, and deployment of sea-based, air-based, space-
based, and mobile land-based ABM systems and components without regard 
to the technology utilized.


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