Researching the Legislative History of U.S. Treaties

by Duncan Hollis

Much of the attention on Medellin has (rightly to my mind) focused on the Court’s definition of a non-self-executing treaty and its method for finding the 3 treaties at issue—the VCCR Optional Protocol, the ICJ Statute and Article 94 of the U.N. Charter—to be non-self-executing. Whatever the more general implications of the Court’s method with respect to a presumption for non-self-executing treaties, it’s now very clear that the Court cares about a treaty’s domestic legislative history—i.e., what domestic legal effect the President and the Senate intended or expected the treaty to have. Now, in many instances the President and the Senate may not have had much to say on this question or what they do say may be ambiguous, but on occasion one or both may be quite clear about the treaty’s intended domestic operation. In each case, however, the difficulty may well lie in finding the relevant records, if any, of the Executive and/or the Senate’s views. Fortunately, there’s a relatively new resource to help with this undertaking. Christian L. Wiktor (who’s earlier Unperfected Treaties series provided an invaluable resource on treaties that never entered into force for the United States) has produced a new volume – Treaties Submitted to the United States Senate; Legislative History 1989-2004 (Brill, 2006). According to the publisher:

The main part is arranged chronologically by the date of conclusion of the treaty. Each treaty contains the following components: it provides general information about the treaty; it lists chronologically steps taken by the Senate during the treaty approval process; legislative implementation, executive action following Senate approval; entry into force, and annotations, such as references to related treaties, amendments, and present status.

The 329 treaties included in the volume can be searched by date of signature, treaty document number, or subject. In addition, there are a series of appendices that allow one to examine which treaties received “en bloc” advice and consent as well as classifications of treaties based on Senate action (i.e., advice and consent without modification, outright rejection, not to mention the multitude of in-between options such as conditioning advice and consent on declarations, reservations, understandings, provisos, etc.). It’s a very useful resource and one that I expect will get increasing use now that the Court has emphasized the importance of legislative history, not just to the justiciability of a treaty, but its very status as law of the United States.

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