1. State Department Procedures on Treaties and Other International Agreements; partial text Circular 175 dated October 25, 1974, 11 FAM 7001

710 PURPOSE

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.

711 DISCLAIMER

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.2

720 NEGOTIATION AND SIGNATURE

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."

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

At the publication date of this volume, no changes had been made to Circular 175 of Oct. 25, 1974. However, currently pending are proposed regulations to implement the Case-Zablocki Act Public Law 92-403-Sec. E, vol. I concerning the coordination of the Secretary of State and the reporting to Congress of international agreements other than treaties. It is anticipated that once these regulations become final, it will be necessary to make technical amendments to the text that appears here. These actions are expected to occur in early 1981. Consult the FEDERAL REGISTER for publication of the final regulations. Both the regulations and the amended text of Circuar 175 will be included in the final section of volume II in next year's compilation in the event that volume III is not reprinted.

Deleted material may be found in the following published source: Rovine, Arthur W., Digest of United States Practice in International Law, 1974, Washington, D.C., U.S. Government Printing Office, 1975, pp. 199-215.

(91)

the Secretary or an officer specifically authorized by him 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 his des ignee, 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 him for that purpose;

g. That authorization to sign the final text is obtained and appropriate arrangements for signature are made;

h. That there is compliance with the requirements of Public Law 92-403 on the transmission of the texts of international agreements other than treaties to the Congress (see section 724); the law on the publication of treaties and other international agreements (see section 725); and treaty provisions on registration (see section 750.3-3). 721 EXERCISE OF THE INTERNATIONAL AGREEMENT POWER

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.

721.2 Constitutional Requirements

There are two procedures under the Constitution through which the United States becomes a party to international agreements. 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 twothirds 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, whose provisions 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 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.'

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 section 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 United States practice with respect to similar agreements;

e. The preference of the Congress with respect 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 with respect 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.

721.4 Questions as to Type of Agreement To Be Used; Consultation With Congress

a. All legal memorandums accompanying Circular 175 requests (see section 722.3e) 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 Congressional Relations 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 his 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 Congressional Relations 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 section 723.1e in connection with the initiation of, and developments during, negotiations for international agreements, particularly where the agreements are of special interest to the Congress.

722 ACTION REQUIRED IN NEGOTIATION AND/OR_SIGNATURE OF TREATIES AND AGREEMENTS

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 him for that purpose. Notification of termination of any treaty or other international agreement on matters of substance requires similar au thorization.

722.2 Scope of Authorization

Approval of a request for authorization to negotiate a treaty or other international agreement does not constitute advance approv al of the text nor authorization to agree upon a date for signature or to sign the treaty or agreement. Authorization to agree upon given date for, and to proceed with, signature must be specifically

requested in writing, as provided in section 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, with respect to multilateral conventions or agreements to be signed at international conferences.

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 and cleared with the Office of the Legal Adviser, the Office of the Assistant Secretary for Congressional Relations, 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 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 with respect to (1) congressional consultation, and (2) opportunity for public comment on the treaty or agreement being negotiated, signed, or acceded to.

d. 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 sections 723.2 and 723.3).

e. The action memorandum is accompanied by (1) the draft, if available, of any agreement or other instrument intended to be negotiated, (2) the text of any agreement and related exchange of notes, agreed minutes or other document to be signed, and (3) a memorandum of law prepared in the Office of the Legal Adviser. 722.4 Separate Authorizations

When authorization is sought with respect to 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.

722.5 Blanket Authorizations

In general, blanket authorizations are appropriate only in those instances where, in carrying out or giving effect to provisions of aw 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, Public Law 480 Agricultural Commodities Agreements; Educational Exchanges Agreements; Investment Guaranty Agreements; Weath