Procedures for Exchanging Instruments of Ratification for Bilateral Law Enforcement Treaties ( 1984 )

Procedures for Exchanging Instruments of Ratification for
Bilateral Law Enforcement Treaties
As long as the Attorney General is duly authorized by the President — or his delegate in the field
of foreign affairs, the Secretary o f State — there is no legal barrier to the Attorney General
witnessing or signing a Protocol o f Exchange of Ratifications on behalf of the United States.
In addition, there is no legal barrier to the exchange of instruments o f ratification occurring at
the Departm ent o f Justice.
July 17, 1984
M e m o r a n d u m O p in io n f o r t h e D e p u t y A t t o r n e y G e n e r a l
You have requested our advice regarding the procedures legally required for
the exchange of instruments of ratification of certain bilateral law enforcement
treaties recently concluded between the United States and other countries. We
understand that the Senate has already given its advice and consent to the
ratification of these treaties, and that the only questions remaining concern
where, and by whom, the instruments of ratification to those treaties are
required to be exchanged. We conclude that, if the Attorney General is duly
authorized by either the President or his delegate (the Secretary of State), there
is no legal impediment either to the Attorney General signing the Protocol of
Exchange of Ratifications or to the signing ceremonies taking place at the
Department of Justice.
As you know, a treaty enters into force in four stages. First, the treaty is
negotiated. Generally speaking, in order to negotiate a treaty, a nation’s repre­
sentative must produce “full powers,” i.e., a document from the President or his
delegate designating him to represent the United States in relation to the treaty.
Heads of state, heads of government, and ministers of foreign affairs are
generally regarded as representing the state without having to produce full
powers, while heads of diplomatic missions and representatives accredited to
international organizations are regarded as possessing like powers within their
jurisdiction. See Restatement (Revised) Foreign Relations Law o f United States
§ 310 (Tent. Draft No. 1, 1980). Thus, the President’s negotiating authority
with respect to bilateral treaties is ordinarily exercised in his name only by the
Secretary of State, Ambassadors, or other delegates who have been provided
with full powers. In this Administration, the Attorney General has been pro­
vided with the full powers necessary to sign a number of bilateral mutual
criminal assistance treaties on behalf of the United States.
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Second, the signed treaty is submitted to the Senate for its advice and
consent to ratification. Once the Senate gives its advice and consent, the treaty
is returned to the President, who must ratify it by signing the instrument of
ratification. Third, representatives of the two nations meet to exchange the
instruments of ratification, a procedure whereby each country gives notice to
the other that it has completed its domestic constitutional processes for ap­
proval and entry into force of the agreement. Fourth and finally, the President
“proclaims” the treaty, and by Executive Order, declares it to be in force
internationally and domestically (to the extent to which it is self-executing).
The questions that you have raised regard the procedure to be followed at the
third step of the procedure outlined above, namely, the exchange of instru­
ments of ratification. Specifically, you have asked whether there is any legal
barrier to the Attorney General’s signing a Protocol of Exchange of Ratifica­
tions or to such a signing ceremony occurring at the Department of Justice, as
opposed to the Department of State.
In the brief time available, we have uncovered no such legal barriers. The
customary procedure for exchanging bilateral instruments of ratification is that
the exchange occurs in the capital city of the country other than that in which
the treaty was signed. Thus, if the United States and Italy were to sign a treaty
in Rome, the treaty would usually specify that the exchange of ratifications is
to take place in Washington, D.C. It is a customary practice that representatives
of the two nations witness the exchange of instruments of ratification by
signing a document known as a proces verbal, or protocol of exchange. ‘The
protocol of exchange does not constitute a new agreement between the parties
to the treaty; it merely evidences the fact that the exchange of instruments of
ratification has taken place.” 14 M. Whiteman, Digest o f International Law 65
(1970). Thus, the protocol usually states that representatives of the two coun­
tries “being duly authorized by their respective Governments,” have met for the
purpose of exchanging instruments of ratification by the respective govern­
ments of the treaty at issue, and that the exchange has taken place, the respec­
tive instruments having been compared and found to be in due form.
Although exchanges are often done by two plenipotentiaries, i.e., representa­
tives endowed with the “full powers” described above, that practice does not
appear to be legally required. In July 1974, the Department of State approved a
procedure, known as the “Circular 175” Procedure, which provides internal
guidelines to be followed in the United States for conclusion of international
treaties. The section of that Circular concerning “Effecting the Exchange” of
Ratification expressly states that:
In exchanging instruments of ratification, the representative of
the United States hands to the representative of the foreign
government a duplicate original of the President’s instrument of
ratification. . . . A protocol, sometimes called proces verbal or
“Protocol of Exchange of Ratifications,” attesting the exchange
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is signed by the two representatives when the exchange is made.
No fu ll power is required fo r this purpose.
Rovine, Digest o f United States Practice in International Law — 1974 199,
209-10 (1975) (emphasis added). To us, this provision suggests that so long as
the Attorney General has been “duly authorized” by the President (or his
delegate in the field of foreign affairs, the Secretary of State), there is no legal
barrier to the Attorney General witnessing or signing a Protocol of Exchange of
Ratifications on behalf of the United States, even if the President or the
Secretary of State has not otherwise conferred upon the Attorney General the
“full powers” that would be required to negotiate or sign the treaty on behalf of
the United States.
With respect to the place of exchange, Circular 175 states only that “it is
customary for a treaty to contain a simple provision to the effect that the
instruments of ratification shall be exchanged at a designated capital," id. at
209 (emphasis added), without anywhere specifying in which building within
the capital the exchange must take place. Assuming that the treaties with which
you are concerned specify that the exchange of ratifications must occur in
Washington, D.C., we see no legal impediment to that exchange occurring at
the Department of Justice, rather than at the Department of State. We express
no view, of course, as to whether protocol or custom might dictate otherwise
with respect to either of the points discussed above.
T heodore B. O lson
Assistant Attorney General
Office o f Legal Counsel
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