The Case-Zablocki Act (1 U.S.C. 112b) – as implemented by 22 CFR Part 181 – requires coordination with the Secretary of State prior to concluding international agreements, and timely reporting to Congress of concluded international agreements upon entry into force. These requirements apply to all agencies of the U.S. Government regardless of whether such international agreements are entered into in the name of the U.S. Government or in the name of a U.S. Government agency.
The Office of Treaty Affairs supports U.S. Government agencies in fulfilling these requirements:
Coordination with the Secretary of State and the Circular 175 Procedure
Determination by the Office of the Legal Adviser of the Department of State
The Office of the Legal Adviser is responsible for determining whether a particular agreement constitutes an international agreement for the purposes of the Case-Zablocki Act. To this end, all agencies of the U.S. Government responsible for negotiating and concluding international agreements must provide the text of any instrument that might constitute an international agreement to the Office of the Legal Adviser. Within the Office of the Legal Adviser, the Office of Treaty Affairs exercises primary responsibility for making such determinations. More information may be found at 11 FAM 710.
Consultations with the Secretary of State
Prior to negotiating or concluding an international agreement, whether in the name of the U.S. Government or an agency, all agencies of the U.S. Government must consult with the Secretary of State or his designee, pursuant to the Department of State procedures set out in the Circular 175 procedure.
Detailed requirements for submitting requests for Circular 175 authority to negotiate or conclude an agreement may be found at 11 FAM 720. Among other things, an agency wishing to negotiate or conclude an international agreement must transmit to the appropriate point of contact in the Office of the Legal Adviser relevant information about the proposed agreement including: 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.
If an international agreement is to be concluded in another language, the agency or office responsible must obtain –prior to conclusion—a signed memorandum from the Department of State’s Office of Language Services certifying that the English and foreign language texts are in conformity with each other and have the same meaning in all substantive respects.
Transmittal of Concluded Agreements
Any agency of the U.S. Government that concludes an international agreement is responsible for transmitting the text of the agreement to the Office of Treaty Affairs no later than 20 days after conclusion.
When transmitting signed agreements to the Office of Treaty Affairs, agencies must include:
- Signed or initialed texts in all languages;
- Unless clearly legible in the text of the agreement, the name and title of the individuals signing or initialing the agreement; and
- Certified copies in the event original texts of signed agreement cannot be transmitted.
Agreement effected by exchange of diplomatic notes
When transmitting agreements effected by exchange of diplomatic notes to the Office of Treaty Affairs, agencies must include:
- A certified copy of the note from the United States; and
- The signed or initialed copy of the note from the foreign government.
Reporting to Congress
The Department of State must report international agreements other than treaties to Congress no later than 60 days after the entry into force of such agreements. Each agreement is reported with a background statement including a brief explanation of the agreement and a precise citation of legal authority.
Preparation of Documents, Instructions, and Signing Ceremonies
Preparation of instruments for signature
The Office of Treaty Affairs supervises the preparation of approved texts of treaties and other agreements to be signed in Washington D.C, and provides instructions to posts for those instruments signed abroad. 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.” However, 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.” Customarily, the principle of the “alternat” doesn’t apply to multilateral agreements which are typically prepared for signature in a single original comprising all the official languages.
Supervising and assisting with signing ceremonies
The Office of Treaty Affairs makes arrangements for and/or supervises signing ceremonies for the signature of treaties or other international agreements taking place in Washington, D.C., and provides guidance and instructions to posts for those ceremonies taking place abroad.
Preparation of other documents necessary for the ratification of treaties
The Office of Treaty Affairs supervises the preparation of the Secretary of State’s report to the President and the President’s message to the Senate to transmit treaties for advice and consent to ratification. The Office of Treaty Affairs also prepares full powers, instruments of ratification, and proclamations; and makes arrangements for the exchange or deposit of instruments of ratification.
Drafting of Instruments not Intended to Create Legal Obligations
Although these instruments do not create legal obligations for the U.S. Government or its agencies they must be carefully drafted to avoid the use of language reserved for legally binding international agreements. The Office of Treaty Affairs reviews instruments not intended to be legally binding proposed to be entered into in the name of the U.S. Government or its agencies to ensure drafting is in accordance with U.S. practice.