Treaties in International Law

1
Treaties in International Law
Statute of the ICJ, Article 38(1) The Court,
whose function is to decide in accordance with
international law such disputes as are submitted
to it, shall apply a. international
conventions, whether general or particular,
establishing rules expressly recognized by
the contesting states b. international
custom, as evidence of a general practice
accepted as law c. the general
principles of law recognized by civilized
nations d. subject to the provisions of
Article 59, judicial decisions and the
teachings of the most highly qualified
publicists of the various nations, as
subsidiary means for the determination
of rules of law.
2
TREATY PROCESS

• countries negotiate a treaty
• treaty text is signed
• countries approve treaty in accordance with
  domestic law

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Travaux Préparatoires
..the preparatory work (in American parlance, the
legislative history) of a treaty, as used as a
means of interpretation. Parry Grant,
Encyclopaedic Dictionary of International Law (2d
ed., 2004) An omnibus expression which is used
rather loosely to indicate all the documents,
such as memoranda, minutes of conferences, and
drafts of the treaty under negotiation, for the
purpose of interpreting the treaty. McNair,
The Law of Treaties (1961)
4
Strategies For Finding Travaux Préparatoires

• Key word search in online catalog/journal index
  name of treaty and travaux or preparatory or
  congress or history or negotiations or
  negotiating history, etc.
• Treaty documents collected and published together
  by an international organization or researcher.
• Treaty documents within the publications of an
  international organization.
• IGO or conference website for recent treaties.
• Yearbooks on international law.

5
Strategies For Finding Travaux Préparatoires

• Yearbooks on international law from international
  organizations or national governments may provide
  useful documents.

6
TREATY PROCESSNational Practice

• Implementing legislation
• National Treaty Law Practice
• Sources of State Practice in International Law
• Researching Non-U.S. Treaties lthttp//www.llrx.com
  /features/non_ustreaty.htmgt

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TREATY PROCESS U.S. Practice

• Senate Web site
• Thomas
• CCH Congressional Index
• Researching U.S.Treaties and Agreements
  http//www.llrx.com/features/ustreaty.htm

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UNPERFECTED TREATIES

• Senate Web site
• Thomas
• CCH Congressional Index
• Unperfected Treaties of the United States of
  America, 1776-1976

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RESERVATIONS UNDERSTANDINGS

• Senate treaty documents contain the reservations
  and understandings attached by the U.S. Senate.
• Multilateral Treaties Deposited with the
  Secretary-General includes the texts of
  reservations for UN treaties.
• Martindale Hubbell International Law Digest
  includes reservations and declarations to some
  Hague Conventions.

10
EXECUTIVE AGREEMENTS

• made by the executive branch without Senate
  approval
• enter into force when signed
• cannot change existing domestic law
• published in UST and TIAS (in theory) or in
  commercial publications (e.g. looseleaf services)

11
TREATIES IN FORCE (TIF)

• published annually by the Department of State
• Department of State website
• Lexis (INTLAWUSTIF)
• Westlaw (USTIF)

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U.S. TREATIES STATUS

• Treaties in Force
• updated by
• "Treaty Actions" section of the Department of
  State web site
• Senate web site
• Thomas
• CCH Congressional Index
• treaty section of the Department of State

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U.S. TREATIESTEXTS

• Statutes at Large (Stat.) (to 1950)
• United States Treaties and other International
  Agreements (UST) (1950-) text of treaties in the
  language of each signatory
• Treaties and other International Acts Series
  (TIAS) (1946-) advance sheet for UST (formed by
  merger of Treaty Series and Treaties and Other
  International Act Series)
• Treaties and Other International Agreements of
  the United States, 1776-1949 (Bevans)
• Lexis (INTLAWUSTRTY) treaties since 1776
• Westlaw (USTREATIES) treaties since 1778

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U.S. TREATIES RECENT

• Lexis INTLAWUSTRTY (1776-)
• Westlaw USTREATIES (1979-)
• Thomas
• Senate Treaty Documents
• Congressional Record
• Department of State Dispatch (through 1999)
• Hein's United States Treaties and other
  International Agreements (microfiche)
• International Legal Materials (I.L.M.)

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U.S. TREATIESOTHER SOURCES

• subject compilations
• Martindale-Hubbell International Law Digest (in
  print/Lexis)
• Federal Register (rarely)
• U.S.C. (never--well, almost never)
• U.S.C.A. (very occasionally)
• U.S.C.S. (International Agreements volume)

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U.S. TREATIES IMPLEMENTING LEGISLATION

• index to printed code or keyword search in code
  databases name of the treaty
• keyword search in full-text periodical databases
• name of the treaty /s implement! or enabl!

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Multilateral Treaties Deposited with the
Secretary-General

• status information for about 500 multilateral
  treaties, including parties, dates of
  ratification, texts of reservations, etc.
• updated weekly
• links to text

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International Treaties Indexes

• Wiktor, Multilateral Treaty Calendar (1648-1995)
• Bowman Harris, Multilateral Treaties Index and
  Current Status (1856-1994)
• World Treaty Index (to 1980)
• search full-text law review database in
  Lexis/Westlaw using name of the treaty

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International Treaties Status

• Multilateral Treaties Deposited with the
  Secretary General /call the U.N. treaty section
• web sites and publications of other international
  organizations, e.g. OAS, Red Cross, Council of
  Europe
• government web site (e.g. foreign ministry)
• international law yearbooks
• subject approach specialized periodicals,
  looseleafs
• Treaty and Agreements section of ILM
• State Department Treaties in Force/ Treaty
  Office / country officer/ Legal Adviser for
  Private International Law

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International Treaties Texts

• Treaty series (e.g. U.N.T.S.)
• International Legal Materials
• American Journal of International Law
• subject compilations keyword searches such as
  double taxation and treaties
• separately published search by name of treaty or
  subject
• Treaty research guides
• websites of governmental and non-governmental
  organizations
• Multilaterals Project

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CITING TREATIES I.L.M.

• 21.4.5(c) When a treaty does not
• appear in the required sources
• listed under rule 21.4.5(a) or
• 21.4.5(b), provide a citation to
• International Legal Materials
• (I.L.M.), if thereinIf such a
• treaty is not found in I.L.M., cite
• one of the other unofficial treaty
• sources available. These include
• the official websites of
• governmental and inter-
• governmental organizations

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International Treaties Texts

• Treaty series (e.g. U.N.T.S.)
• International Legal Materials
• American Journal of International Law
• subject compilations keyword searches such as
  taxation and treaties
• separately published search by name of treaty or
  subject
• Treaty research guides
• websites of governmental and non-governmental
  organizations
• Multilaterals Project

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Non-U.S. Bilateral Treaties

• national treaty series (e.g., U.K. Treaty Series,
  Recueil des Traités et Accords de la France )
  subject search countryforeign relationstreaty
  or keyword search country and treaties
• UNTS
• World Treaty Index (through 1980)
• codes
• national gazettes
• ILM
• yearbook or review of international law
• legal periodicals
• government web site (e.g. foreign ministry)