are not authorized to accept instruments of ratification of foreign governments; that is, the foreign government cannot deposit its instrument with the post. If a post is requested to transmit an instrument of ratification to the Deparment, it must make clear to the foreign government that the post is acting only as a transmitting agent and that the ratification cannot be considered as accepted for deposit until received and examined by the Department.

746.3 Registration (See also section*750.3-3)*

It is generally recognized that the depositary for a multilateral agreement has a primary responsibility for its registration. Normally, the depositary has custody not only of the original document of agreement but also of instruments of ratification and other formal documents. Consequently, the depositary is the most authoritative source of information and documentation. *750 Responsibilities of the Assistant Legal Adviser for Treaty Affairs 750.1 Preparation of Documents, Ceremonies, and Instructions

Carrying out and providing advice and assistance respecting the provisions of this chapter are the responsibility of the Assistant Legal Adviser for Treaty Affairs, who:

a. Reviews all drafts of international agreements, proposals by other governments or international organizations, instructions and position papers, all Circular 175 requests, and accompanying memorandums of law;

b. Makes all arrangements and supervises ceremonies at Washington for the signature of treaties or other international agreements; and prepares or arranges for the preparation of texts of treaties and other agreements to be signed at Washington;

c. Prepares or arranges for preparation of the Secretary of State's reports to the President, and the President's messages to the Senate for transmission of treaties for advice and consent to ratification;

d. Prepares instruments of ratification or adherence, instruments or notifications of acceptance or approval, termination notices, and proclamations with respect to treaties or other international agreements;

e. Makes arrangements for the exchange or deposit of instruments of ratification, the deposit of instruments of adherence, the receipt or deposit of instruments or notifications of acceptance or approval, and termination notices with respect to treaties or other international agreements;

f. Prepares instructions to posts abroad and notes to foreign diplomatic missions at Washington respecting matters stated in paragraph e;

g. Takes all measures required for the transmission to the Congress of all international agreements other than treaties, as required by the Public Law 92-403 (see section 724), and the publication and registration of treaties and other international agreements to which the United States is a party (see sections 725 and 750.3-3).*

750.2 Engrossing Documents for Signature

After the text of a treaty or other agreement is approved in writing in accordance with section 722.7, the document is engrossed for signature in the Department.

Adequate time (normally 7 business days) is allowed for the engrossing (typing on treaty paper), comparing, etc., of the treaty or other agreement to be signed, in order to assure sufficient time for the preparation of accurate texts in duplicate for signature, including, in the case of documents to be signed in a foreign language, sufficient time for the Language Services Division to prepare any translations required, check any existing foreign-language draft, and check the engrossed foreign-language text. The determination of the amount of time required in each instance to complete the engrossing is the responsibility of the Assistant Legal Adviser for Treaty Affairs. 750.3 Publication and Registration

After the necessary action has been taken to bring into force the treaty or other international agreement concluded by the United States, it is published promptly in the Treaties and Other International Act Series issued by the

Department. After publication in that series, the text of the treaty or other agreement is printed in the annual volume (which may consist of two or more bindings) of United States Treaties and Other International Agreements, as required by law (see section 725). Treaties and other agreements concluded prior to January 1, 1950, were published in the United States Statutes at Large.

750.3-2* Responsibility for Other Treaty Publications *

The Office of the Assistant Legal Adviser for Treaty Affairs prepares and maintains the annual publication Treaties in Force, an authoritative guide to the text and status of treaties and other international agreements currently in force for the United States. It also compiles and has published, in addition to the text referred to in section 750.3-1, other volumes containing texts of treaties and other agreements as required or authorized by law. * The "Treaty Information" part of the Department of State Bulletin is compiled by that office.*

750.3-3 Registration

Article 102 of the United Nations Charter requires that every treaty and every international agreement entered into by a member of the United Nations be registered, as soon as possible, with the Secretariat and published by it. Article 83 of the Chicago Aviation Convention of 1944 requires registration of aviation agreements with the Council of the International Civil Aviation Organization.

750.4 United States as Depositary

Inquiries from foreign diplomatic missions at Washington and from American diplomatic missions abroad with respect to the preparation or deposit of instruments relating to any multilateral agreement of which the United States is depositary are referred to the Assistant Legal Adviser for Treaty Affairs. That officer is to be notified immediately of the receipt of any such document anywhere in the Department, inasmuch as a depositary is required to ascertain whether those documents are properly executed before accepting them for deposit, to keep accurate records regarding them, and to inform other governments concerned of the order and date of receipt of such documents.

b. Before any arrangements are proposed or agreed to for the United States to serve as depositary for any international agreement, the views of the Assistant Legal Adviser for Treaty Affairs will be obtained.** 750.5 Records and Correspondence Custody

a. The Assistant Legal Adviser for Treaty Affairs compiles and maintains authoritative records regarding the negotiation, signature, transmission to the Senate, and ratification or approval, as well as the existence, status, and application, of all international agreements to which the United States is or may become a party and, so far as information is available, of agreements between other countries to which the United States is not a party. Inquiries on these subjects are addressed to, and outgoing communications cleared with, the Office of the Legal Adviser.

b. To insure that the records regarding the matters described in this section are complete and up to date, it is important that all relevant papers be referred to the Office of the Legal Adviser.

c. The Assistant Legal Adviser for Treaty Affairs is responsible for the custody of originals of bilateral agreements and certified copies of multilateral agreements pending entry into force and completion of manuscripts for publication. Following publication, such originals and certified copies are transferred to the National Archives. The Assistant Legal Adviser for Treaty Affairs retains custody of signed originals of multilateral agreements for which the United States is depositary, together with relevant instruments of ratification, adherence, acceptance, or approval, as long as those agreements remains active.

Ratification

Charles I. Bevans, Assistant Legal Adviser for Treaty Affairs in the Department of State, summarized the procedures involved in the

ratification process in a letter dated March 27, 1974, written in response to an inquiry from a private citizen. The following are excerpts from the letter:

In response to your request for an official statement of the ratification process I am glad to supply the following outline of the procedures involved.

Following the signature of a treaty on behalf of the United States, the first step in the ratification process is the preparation of a report to the President regarding that instrument by the Secretary of State and submitting the treaty to the President with a recommendation that it be transmitted to the Senate for the advice and consent of that body to ratification.

If the President approves that recommendation, he transmits the treaty to the Senate with a message, together with the report of the Secretary of State, requesting advice and consent to ratification.

When the treaty is received by the Senate, it is read the first time and, together with the accompanying papers, referred to the Committee on Foreign Relations and ordered to be printed for the use of the Senate. . . .

Almost invariably the Committee on Foreign Relations schedules hearings on the treaty, calling upon the Department of State and other departments and agencies principally concerned to designate individuals to testify with respect to the treaty before that Committee. Whenever possible the intention to hold such hearings is published in the Congressional Record and members of the public who are interested may arrange to testify. In some instances, expert witnesses from outside the Government may be especially invited by the Committee to testify.

After the hearings are completed, which may be in one day but may sometimes require several days, the Committee, if it approves the treaty, will make a report thereon to the Senate recommending that the Senate give its advice and consent to ratification . .

Following a favorable report on the treaty, the treaty is placed on the Executive Calendar where it may be called up for consideration. The date scheduled for consideration is usually fixed by agreement between the majority leader and the minority leader.

When the scheduled time for consideration is reached the Senate moves from its usual legislative session into Executive session where the treaty is taken up. Ordinarily, the vote on advice and consent takes place on the same day the treaty is first considered in the Senate. It is the customary procedure to have a roll call before one or more treaties are voted upon. The vote on advice and consent is required to be a two-thirds one under the Constitution of the United States, Article II of which states in clause 2 of Section 2 with respect to the powers of the President that:

"He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur;

Following the advice and consent of the Senate, the Secretary of the Senate attests to the resolution of advice and consent and the attested resolution approving the treaty, along with the treaty itself, is transmitted to the President . . .

The President transmits the resolution of advice and consent to the Secretary of State for the preparation of the President's instrument of ratification for signature.

The instrument of ratification is ordinarily transmitted to the President for signature in duplicate, one original for retention in the Department's archives and the other for exchange for a corresponding instrument by the other government concerned, in the case of a bilateral... treaty, or for deposit with a government or international organization in the case of a multilateral . . . treaty.

After the ratification is signed by the President it is returned to the Secretary of State (or in his absence the Acting Secretary of State) who in turn countersigns each of the duplicate originals and has the Seal of the United States affixed to each, thereby completing all the national action involved in the process of ratification...

Such action does not, however, complete the entire process ordinarily required to establish on the international plane the consent of the United States to be bound by a treaty. On the international plane, the word "ratification" is given a special meaning as set forth in Article 2 of the Vienna Convention on the Law of Treaties, done at Vienna May 23, 1969, which, in defining the use of terms in the Convention, provides that:

"ratification," "acceptance," "approval" and "accession" mean in each case the international act so named whereby a state establishes on the international plane its consent to be bound by a treaty;

Practically every bilateral treaty provides that it shall be subject to ratification, that the instruments of ratification shall be exchanged, and that the treaty shall enter into force upon such exchange or upon a date following a specified period of time thereafter, and practically every multilateral treaty similarly is subject to ratification and enters into force only after a specified number of instruments of ratification are deposited. Accordingly the ratification of a treaty on the international plane ordinarily involves not only completion of the national action but also the exchange or deposit of an instrument of ratification.

*

*

*

Dept. of State File No. P74 0040-0367.

Depositary Functions

On May 28, 1974, the Legal Sub-Committee of the United Nations Committee on the Peaceful Uses of Outer Space approved a draft Convention on Registration of Objects Launched Into Outer Space

(see Chapter 8, § 6, infra, pp. 398-404). On May 31, U.S. Representative Herbert Reis made a statement in the Sub-Committee which included the following on the subject of depositary functions:

We are glad that the Sub-Committee has accepted the proposal of the distinguished Representative of Argentina that the U.N. Secretary-General should serve as the depositary for the Registration Convention. We agree with his thesis that it is appropriate for the Secretary-General to serve as the depositary for any general multilateral treaty that may be concluded within the framework of the United Nations, and it is the more appropriate that he should serve as depositary for this particular convention, since it is he who is to maintain the international register. We are glad that political developments with regard to problems posed by attempted signatures of, or adherence to, U.N. treaties by unrecognized regimes have made possible our now joining in support of this view. With regard to possible future problems in this context, we attach importance to the willingness of the Secretary-General to implement the "all states" accession and related clauses by consulting in the event of serious controversy, in accordance with the statement delivered by the U.N. Legal Counsel on December 14, 1973, concerning the manner in which the Secretary-General would intend to act under the similar provision of the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents.

Dept. of State Bulletin, Vol. LXXI, No. 1828, July 8, 1974, p. 72. The 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents may be found at U.N. Doc. A/9047, Dec. 10, 1973. The understanding of the U.N. General Assembly with respect to the role of the Secretary-General as depositary is at Id., p. 71. See the 1973 Digest, Ch. 4, § 1, pp. 156-158.

On September 19, 1974, Secretary of State Henry A. Kissinger made a statement before the Senate Committee on Foreign Relations with respect to Soviet-American relations. His statement included the following passage on the observance of principles of behavior as set forth in documents agreed to by the governments of both nations:

Cooperative relations, in our view, must be more than a series of isolated agreements. They must reflect an acceptance of mutual obligations and of the need for accommodation and restraint.