THE SURVIVAL OF THE SECRET TREATY: PUBLICITY, SECRECY, AND LEGALITY IN THE INTERNATIONAL ORDER.

Author:Donaldson, Megan
 
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Concern about "secret diplomacy" in the wake of World War I found its clearest expression in opposition to "secret treaties." Left-leaning and internationalist groups believed that "publicity" of treaties (1) would advance the control of foreign policy by legislatures and citizens, and help construct a more peaceful international order, governed by law rather than power politics. Article 18 of the Covenant of the League of Nations gave expression to these ideals, by purporting to render the binding force of treaties entered into by any member of the League conditional on their registration by the League Secretariat. Registration in turn entailed publication to the world at large. (2) Article 18 was thus the first instantiation of a norm of treaty publication in international law (with "treaty" here understood in the general international law sense). (3) Admittedly, this norm was a relatively narrow one. It guaranteed only the publication of treaties once made, and did not address the secrecy of the negotiation phase. Nevertheless, it was a major change to law and diplomatic practice. Aspects of Article 18 were carried over into Article 102 of the UN Charter, which in turn was echoed in the Vienna Convention on the Law of Treaties (VCLT). (4)

This article offers the first detailed history of the norm of treaty publication. It traces the emergence of the norm, and struggles over its interpretation and application, through the practice of the United States, Britain, and France. While these three states are not representative of the international community as a whole (neither in the interwar period nor today), their commitment to greater publicity, and influence over modes of diplomacy, makes them a revealing lens on the norm and its limits. The article draws on public debates in legislatures, international organizations, and legal scholarship, but also discussions within foreign ministries and the League of Nations Secretariat. Analysis from these diverse sources offers a clearer picture of the true legal architecture of publicity and secrecy in treaty practice. It suggests how, and why, margins for secrecy have persisted, even in liberal democracies, and draws out for critical scrutiny the relationship between the norm of treaty publication and legality in the international order.

The article challenges the liberal democratic trajectory some might expect, namely ever-greater publicity over time. It shows that, while statesmen and officials made real efforts to uphold the publication norm, they also fought to preserve some avenue for making commitments that were both legally binding and secret. In international law, the radical potential of Article 18 of the Covenant--the connection it forged between registration and publication, on one hand, and binding force, on the other--was undone in the early years of the League. Article 102 of the Charter is less ambitious than its predecessor. Domestic law requirements, which arguably play as great a role in driving publication as international requirements, have also left avenues for secrecy, although these have been narrowed and systematized.

Within liberal democracies, the article shows that general attitudes to the norm of publication were driven not only by factors like perceived geopolitical vulnerability, but also national political and legal cultures, and even the bureaucratic organization of the treaty apparatus. Specific efforts to carve out exceptions to the norm of publication, or decisions to flout it, were motivated by diverse considerations: perceived needs to preserve some concrete advantage over military or commercial rivals, to stabilize markets or currencies, and to prevent political opposition from national populations, colonies, or allies; but also to conceal markers of inferiority or subordination in interstate relations, and thus shore up a symbolic economy of interstate equality. For bodies charged with upholding the norm, like the League Secretariat, maintaining the force of Article 18 was important for credibility with internationalist constituencies, but there were countervailing incentives to interpret the provision narrowly in order to avoid confronting--and being seen to be defeated by--powerful member states.

Many motivations for secrecy on the part of governments and institutions were self-interested and instrumental. However, officials and reformists also thought about secrecy in principled terms. On occasion, they reconsidered the normative case against secrecy that had been seen as persuasive in 1919. Some came to doubt whether secrecy was always inimical, for example, to peaceful ordering. In some instances, it seemed vital to preserve peaceful relations.

The doubts of contemporaries suggest enduring questions about whether and how the norm of treaty publication favors ends like democracy, peace, and legality. (5) This article probes, in particular, the relationship between publicity and legality in the international order. In doing so, it gives a sense of the complex empirical terrain in which questions about democracy and peace, too, would have to be pursued.

Actors concerned with publicity articulated different dimensions of the relationship between publicity and legality. Simplified for the sake of analysis, much of the discussion about publicity posited, first, a basic conceptual or normative connection to legality. This could take the form of assertions that legal relations and obligations were inherently public, or that they ought to be public. Second, there was an expectation that the norm of treaty publication would strengthen the role of law in the international order more generally (for example, by improving the dissemination and coherence of the law itself, fostering a commitment on the part of governments to following the law, or levelling out power imbalances between states and vindicating sovereign equality). This combined a general normative sensibility with a number of very condensed assumptions about the effects of publication or secrecy in particular contexts. Finally, there was confidence in law as a means of entrenching the norm of publication. This article shows that each of these stylized dimensions of the relationship between publicity and legality proved more complex--empirically and conceptually--than it had seemed in 1919.

The article intersects with doctrinal scholarship on the law of treaties and emergent research on why states craft interstate commitments in particular ways. However, doctrinal scholarship--cited very sparingly here--often concentrates on problems of classification, like the definition of a treaty (6) and distinctions between legally binding "treaties" and "gentlemen's" or "non-binding" agreements; (7) or on questions which flow from classification of texts, like the role of ancillary texts in interpretation. (8) By contrast, emergent research on why states make agreements in the form they do largely brackets these questions. (9) This article puts the law at the heart of the inquiry. Unlike doctrinal scholarship, though, it is not aimed at reaching its own classification of the texts considered. Rather, it probes what interlocutors understood themselves to be doing in drafting or handling texts in particular ways.

Attention to these features of treaty practice, often side-lined in doctrinal accounts, gives a much richer picture of the true architecture of publicity and secrecy. It reveals the possibilities created by the interplay of the law of treaties with diplomatic crafts of drafting, and the management of texts within foreign ministry bureaucracies. It suggests a more expansive canvas for states crafting their commitments than can be captured in many studies of state behavior. Governments are not only choosing between treaties and non-binding agreements, for example, but crafting complexes of different texts, making choices about presentation and emphasis which are difficult to capture in quantitative ways. Officials are sometimes uncertain about the status of particular texts, in disagreement with each other, or consciously shaping textual forms to preserve ambiguity about legal status. Finally, close attention to the crafting of texts and the negotiation of the bounds of the category of treaty brings to the fore some paradoxical aspects of secrecy in the international legal order. Secret treaties, by their nature, will never enjoy many avenues for thetorical or institutional enforcement typically associated with legally binding commitments. They might even thus reflect a faith in legal obligation alone to shape staff behavior. Conversely, however, some secret treaties purport to commit states to actions which may violate international law, calling broader commitments to legality into question.

The article begins with a brief overview of the pre-World War I (WWI) landscape (Part I). It then traces the emergence of Article 18, and the tacit qualification of this provision in the early years of the League's existence (Part II), before addressing interwar confrontations with a comprehensive publication norm in national public law and practice (Part III). While interwar developments are considered in detail, as they shaped approaches taken after World War II (WWII), the treatment of national practice is necessarily selective, focusing on examples which illustrate the range of areas in which secrecy was sought, the repertoire of techniques used, and particular turning points in national approaches. The article then considers the transformation of the treaty publication norm after WWII, a period for which the archival material becomes scarcer (Part IV). It sketches the evolution of techniques of secrecy, and changing legal approaches to its management, from WWII to the present (Part V), before offering a snapshot of the secret treaty today (Part VI). Finally, it summarizes developments over the last century, and what they reveal about the empirical landscape in which to...

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