Where Have All the Treaties Gone?

by Duncan Hollis

The United States is currently bound by over 10,000 treaties and other international agreements. That’s a big number. But as Detlev Vagts noted seven years ago (subscription required), the United States has done a poor job of making these treaties publicly available. In terms of publications, the situation has only deteriorated in the interim. If you are hoping to find a hardbound print of a recent treaty in the United States Treaties series (UST), good luck. The last UST volume contains treaties from 1984. And even if you are willing to accept a pamphlet version from the Treaties and International Acts Series (TIAS), the most recent treaty text you will find dates from 1996. Of course, the Senate has recently begun posting treaties submitted to it by the President (see here and here), and various international organizations also tend to make multilateral treaties available online. Still, if you are looking for bilateral executive agreements, you frequently have to rely on (and pay for) unofficial, private sources (e.g., Hein Online, Lexis, Westlaw, Oceana).

Now, as someone who worked in the Treaty Office at the State Department for several years, I can attest that the publication lag was largely a resources problem – there was simply neither the money nor the personnel to keep up with a dramatic expansion in U.S. treaty-making. Still, the “lack of resources argument” was often a cold comfort for international lawyers trying to find “official” texts for purposes of research, citation to courts, etc. Moreover, to the extent one views these treaties as the “supreme Law of the Land” under Article VI and attendant Supreme Court caselaw, there is a serious notice problem when the public has no readily available way to access the contents of these instruments.

Fortunately technology (with a little push from Congress) seems poised to save the State Department from further criticism. In accordance with Section 7121 of P.L. 108-458, the State Department must now post online international agreements that it otherwise intends to publish in TIAS within 180 days of their entry into force. Nearly 1500 such agreements are now available, dating from 1998 to the present. You can find them here as part of the State Department’s “International Agreements Collection.”

This is good news for those of us who do treaty research on a regular basis. It may not make treaty-research any easier; there is still no “one stop shopping” for U.S. treaty texts. But it is certainly worth applauding that texts previously unavailable short of a phone call to Foggy Bottom can now be accessed online. And without appearing greedy, might I suggest it should serve as a precursor to putting all U.S. treaties and international agreements online at some point in a publicly available, official forum. Until then, happy treaty-hunting.

http://opiniojuris.org/2005/12/07/where-have-all-the-treaties-gone/

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