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The Registration and Publication of Treaties

Published online by Cambridge University Press:  04 May 2017

Manley O. Hudson
Manley O. Hudson*
Affiliation:
Harvard Law School
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Extract

In late 1917, when the Soviet Government of Russia published various documents from the archives of the Russian Foreign Office, an insistent demand was created throughout the world for the abolition of secret diplomacy. A volume of secret treaties was published in England in 1917 and in the United States in early 1918, and the consequent reaction of public opinion greatly influenced the current statements of the aims of the belligerents. In his address of January 8, 1918, President Wilson put the subject of secret diplomacy at the forefront in the “program of the world's peace” embodied in the Fourteen Points: “Open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind but diplomacy shall proceed always openly and in the public view.” It has since developed that these words may have been written without a knowledge of the contents of the secret treaties made by Allied Powers during the war; but they were largely responsible for the crystallization of the revulsion which followed the publication of the secret treaties into a determination that the end of the war should signalize the beginning of a new era in the conduct of international relations.

Type
Research Article
Information
American Journal of International Law , Volume 19 , Issue 2 , April 1925 , pp. 273 - 292
Copyright
Copyright © by the American Society of International Law 1925

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References

1 In 1916, the Organisation Centrale pour une Paix Durable had put into its minimum program a provision that “Les trail$$$s secrets seronts nuls de plein droit.” Google Scholar Rapports, II, p. IV. On December 28, 1917, leaders of the Labor movement in England presented to the British Prime Minister a memorandum demanding “the suppression of secret diplomacy, and the placing of foreign policy just as much as home policy under the control of popularly elected legislatures.” Google Scholar See, A League of Nations (published by World Peace Foundation), vol. I, p. 119 (No. 3).Google Scholar The American League of Free Nations Association included in its statement of principles the demand that “in the future there must be an end to secret diplomacy.” Google Scholar

2 The secret treaties were published in the Isvestiya and the Pravda, the official organs of the Soviets, in November, 1917.Google ScholarPubMed Translations were published by the Manchester Guardian on December 12, 1917, January 18, and 19, February 1, 8, and 22, and March 12, 1918, and by the New York Evening Post on January 25, and 26, and March 2, 1918.Google Scholar They were also published in part by New Europe on December 20, 1917, supplement, and January 17 1918, and by Current History in March, 1918.Google Scholar See Laloy, Les Documents Secrets (4th ed., 1920).Google Scholar See also Pribram, The Secret Treaties of Austria-Hungary (English ed. by A. C. Coolidge, 1920);Google Scholar Cocks, The Secret Treaties and Understandings (1918).Google Scholar

3 See Baker, Woodrow Wilson and World Settlement, vol. I, pp. 38–46.Google Scholar

4 President Wilson later explained this statement, in a letter of June 12, 1918, addressed to Secretary Lansing, as follows: “When I pronounced for open diplomacy, I meant, not that there should be no private discussions of delicate matters, but that no secret agreements should be entered into, and that all international relations, when fixed, should be open, above board, and explicit.” Google Scholar Baker, Woodrow Wilson and World Settlement, I, p. 46.Google Scholar

5 See Baker, Woodrow Wilson and World Settlement, I, pp. 33–37.Google Scholar

6 On April 1, 1924, Mr. Ponsonby, , Under-Secretary to the Foreign Office, announced in the House of Commons that “it was the intention of the Government to lay on the table of the House every treaty, when signed, for a period of twenty-one days, after which the treaty would be ratified . . . By this means secret treaties and secret clauses of treaties would be rendered impossible.” Google Scholar London Times, April 2, 1924, p. 7.Google Scholar “In 1886 a resolution Was all but carried in the House of Commons, desiring all treaties to be laid before Parliament for its approval before being finally concluded.” Bryce, American Commonwealth (1924 rev. ed.), I, 109 note.Google Scholar The matter seems to have been debated also on March 11, 1925.Google Scholar It has been pointed out that secrecy is now far more difficult with respect to British Empire treaties on account of Dominion participation. 146 Law Times, 113. Cf., a brochure entitled “The Treaty-Making Power in Various Countries,” published by the U. S. Department of State in 1919;Google Scholar Denys, P. Myers, in American Political Science Review, vol. xi, pp. 46 ff.Google Scholar

7 See Hunter Miller, David, Secret Statutes of the United States (1918).Google Scholar

8 In practice, the texts of American treaties are usually withheld from publication at the time of signing, and it is the Senate that releases them. The Senate manual provides: “All confidential communications made by the President of the United States to the Senate shall be by the Senators and the officers of the Senate kept secret; and all treaties which may be laid before the Senate, and all remarks, votes, and proceedings thereon shall also be kept secret, until the Senate shall, by their resolution, take off the injunction of secrecy, or unless the same shall be considered in open Executive sessions.” Manual of U. S. Senate, Rule 36, par. 3. For an instance of the violation of the injunction of secrecy, see Hayden, The Senate and Treaties (1920), p. 90.Google Scholar See also Bryce, American Commonwealth (1924 rev. ed.), I, 105 note.Google Scholar By recent practice, texts are published in the Congressional Record when the Senate acts favorably.

9 The scope of executive agreements not submitted to the Senate of the United States is very large. See Moore, John Bassett, “Treaties and Executive Agreements,” 20 Political Science Quarterly, 385 (1905).Google Scholar

10 Baker, Woodrow Wilson and World Settlement, III, p. 129.Google Scholar The Italian delegation at the Peace Conference submitted a draft of a constitution for a league to the League of Nations Commission, listing as one of the fundamental principles, “Secret international treaties are prohibited.” Kluyver, Documents on the League of Nations, p. 90.Google ScholarPubMed The German delegation, in its proposals for the establishment of a League of Nations, suggested the following: “The members of the League of Nations shall bind themselves to hand over all international treaties, concluded by them, to the Chancery for publication in the organ of the League of Nations.” See the German Proposals, p. 9.Google Scholar

The suggestions of various neutral Powers were to the same effect. For the Swiss proposal, see Mmage du Conseil F$$$d$$$ral a l’AssembUe F$$$d$$$rah, du 4 ao$$$ 1919, p. 249.Google Scholar The Danish, Norwegian and Swedish Governments proposed an international council to be charged with the registration and publication of treaties in an international bulletin. Norway, Utenrikt-departementet, Norges tilslutning til folkenes forbund, Annex 1, p. 18.Google Scholar

11 Baker, Woodrow Wilson and World Settlement, III, pp. 150–151.Google Scholar

12 Preliminary Peace Conference, Protocol No. 5, pp. 42–43.Google Scholar

13 Preliminary Peace Conference, Protocol No. 3, p. 9.Google Scholar

14 See, for instance, Article 97 of the Convention for the Pacific Settlement of International Disputes. This provision is included in all the 1907 Conventions except Convention XII relative to the creation of an International Prize Court. Article 23 of the International Opium Convention of 1912 provides for a notification every month to the signatory Powers of the ratifications received in the interval by the Netherlands Government. Somewhat similar provisions have been included in conventions recently drawn up at conferences held under the auspices of the League of Nations: thus, Article 14 of the Convention on Obscene Publications of September 12, 1923;Google Scholar Article 7 of the Convention on the International Regime of Railways of December 9, 1923.Google Scholar

15 Article 43 of the 1907 Convention, Article 22 of the 1899 Convention.Google Scholar

16 1 League of Nations Treaty Series, 9–13.Google Scholar Cf. a report of a lecture on “Secret Treaties” by MacDonnell, Sir John, in March, 1919.Google Scholar 146 Law Times, 324.Google Scholar

17 It might be argued that because of Article 21 of the Covenant, Article 18 does not apply to “international engagements such as treaties of arbitration or regional understandings like the Monroe Doctrine for securing the maintenance of peace.” But in spite of the language of Article 21, that effect is hardly to be given to it. Cf. Hyde, International Law, II, p. 7, note.Google Scholar

18 It would seem possible, however, that the date of a state’s becoming a member of the League might be taken, wherever this date is later than January 10 1920.

19 Though many of the instruments since registered refer to treaties antedating January 10, 1920, all of them seem to have come into effect in some way subsequently to that date.

20 Moore, John Bassett, “Treaties and Executive Agreements,” 20 Pol. Sci. Quarterly 385, 388.Google Scholar See also Crandall, Treaties, Their Making and Enforcement (2d ed., 1916), p. 7.Google ScholarPubMed On the general classification of international treaties, see Andr$$$a Rapisardi-Mirabelli, “La Classification des Traites Intemationaux,” 4 Revue de Droit International et de Legislation Compared (3 ser.), 653.Google Scholar

21 8 Treaty Series, p. 148.Google ScholarPubMed

22 Ibid., p. 42.

23 10 Treaty Series, p. 335.Google ScholarPubMed

24 17 Treaty Series, p. 367.Google ScholarPubMed

25 8 Treaty Series, p. 328;Google ScholarPubMed 10 Treaty Series, pp. 408, 417.Google ScholarPubMed

26 11 Treaty Series, p. 393.Google Scholar

27 Ibid., p. 437.

28 Ibid., p. 437.

29 Ibid., p. 469.

30 7 Treaty Series, p. 13.Google ScholarPubMed

31 11 Treaty Series, p. 465.Google ScholarPubMed

32 8 Treaty Series, p. 372.Google ScholarPubMed

33 11 Treaty Series, p. 387.Google ScholarPubMed

34 Ibid., p. 385.

35 2 Treaty Series, p. 50.Google ScholarPubMed

36 Ibid., p. 108.

37 6 Treaty Series, p. 42.Google ScholarPubMed

38 12 Treaty Series, p. 356.Google ScholarPubMed

39 13 Treaty Series, p. 333.Google ScholarPubMed

40 14 Treaty Series, p. 219.Google ScholarPubMed

41 See report of Committee of Jurists set up to study Article 18, p. 3. (C. 256.1921. V.)Google Scholar

42 In practice, many engagements have been registered prior to any ratification, but in most cases they are such as do not require ratification. See, however, 26 Treaty Series, p. 21.Google ScholarPubMed

43 This seems to envisage a written text, but an oral treaty seems a possibility. Oppen-heim, International Law (3d ed.), I, 664 note.Google Scholar

44 Minutes of Fifth Session of Council, pp. 11–15; text of Secretary-General’s memorandum, Ibid., pp. 131–137.

45 At the Second Assembly, M. Seferiades (Greece) proposed that the following clause be added to Article 18: “Any treaty, the provisions of which in the unanimous opinion of the Council are contrary to international public order, shall not be registered, and shall, therefore, be deemed to be non-existent.” Records of Second Assembly, Meetings of Committees, I. 77.Google Scholar

46 Official Journal. 1920. n. 154.Google ScholarPubMed

47 Ibid., p. 252.

48 This was announced m a memorandum submitted to the Council by the Secretary-General on May 18, 1920.

49 Official Journal, 1920, p. 444.Google ScholarPubMed It may be argued, however, that as a consequence of the preamble of the Treaty of Versailles in which Germany agreed to its provisions, Germany became bound by Article 18 to register all treaties made with members of the League.

50 2 Treaty Series, 128–130.Google ScholarPubMed

51 See New York Times, November 2, 1920, p. 17.Google Scholar

52 Speaking in the Council on February 21, 1921, Mr. Balfour (Great Britain) referred to this understanding and stated that it “included a secret and purely technical chapter which could not in the interests of international peace be registered or published.”

53 This is based on Mr. Balfour’s statement in the Council on February 21, 1921, that “the origin of the difficulty which rendered this investigation necessary lay in the defensive treaty recently concluded between France and Belgium.”

54 Records of First Assembly, Plenary Meetings, p. 104.Google Scholar

55 Ibid., p. 94.

56 Ibid., p. 160.

57 Records of First Assembly, Plenary Meetings, p. 155.Google Scholar

58 M. Tittoni (Italy) later adopted this third position: “In my opinion the failure to register a treaty does not render it null; the treaty continues to exist as between the parties who have signed it, but it is not valid in the eyes of the League of Nations, and the latter cannot be appealed to in order to cause the treaty to be observed.” Records of First Assembly, Plenary Meetings, p. 177.Google Scholar

59 Records of First Assembly, Plenary Meetings, pp. 209–210.Google Scholar

60 Official Journal, 1921, p. 112.Google ScholarPubMed

61 Minutes of Twelfth Session of Council, p. 5.Google Scholar

62 Official Journal, 1921, p. 224.Google ScholarPubMed

63 The report seems to have been omitted from the Assembly records, but it was published as Doc. C. 256. 1921. V. (A. C. 31.)Google Scholar

64 But see the report presented to the Institute of International Law in August, 1923. 4 Revue de Droit International et de Legislation Compared (3 ser.), 671.Google Scholar

65 Mr. Charles Cheney Hyde has expressed the opinion that Article 18 “did not purport to render invalid a treaty which was not registered with the Secretariat, but rather to cause it to be voidable should a party to the agreement appropriately and in season so elect. Thus an engagement not so registered might be fairly deemed to resemble a contract between private individuals, which although not invalid, is rendered unenforcible through the failure of the parties to heed the requirements of a statute of frauds.” Hyde, International Law, II, p. 7.Google Scholar But considering the purpose of a statute of frauds, perhaps a failure to record a conveyance as required by a statute would be a closer analogy, for the requirement of record is designed to protect third persons.

As to states not parties to the Covenant of the League of Nations, the question may arise whether such states are in any way bound to take notice of the effect of Article 18 in limiting the capacity of members of the League to enter into treaties. If a treaty between the United States and France were not registered, what would an international tribunal say as to its validity? Are non-members bound to take notice of Article 18 in any way? Cf. Mr.Crocker’s, H. G. suggestion in this JOURNAL, vol. 18, p. 43.Google Scholar

66 Records of Second Assembly, Meetings of Committees, I, 167.Google Scholar

67 Records of Second Assembly, Meetings of Committees, I, 68–87,119.Google Scholar

68 For the text of the report, see Records of Second Assembly, Meetings of Committees, I, p. 195;Google Scholar Plenary Meetings, p. 700.Google ScholarPubMed

69 Records of Second Assembly, Plenary Meetings, pp. 839–852, 882–883, 895.Google Scholar

70 Ibid., p. 848, Mr. Balfour; p. 850, Fernandes, M..Google Scholar

71 Ibid., p. 849.

72 Ibid., pp. 841–845.

73 Ibid., p. 852.

74 Provisional Verbatim Record of Second Assembly, 32d Plenary Meeting, pp. 10, 12.Google Scholar

75 Record of Second Assembly, Plenary Meetings, p. 895.Google Scholar For this reason, it is believed that the rapporteur before the Institute of International Law in August, 1923, over-stated the effect of the Assembly’s action.Google ScholarPubMed See 4 Revue de Droit International et de Legislation Com-parie (3 ser.), 671.Google Scholar

76 Records of Third Assembly, Plenary Meetings, II, p. 5.Google Scholar

77 Ibid., p. 17.

78 Records of Third Assembly, Minutes of First Committee, pp. 26–27, 32, 35.Google Scholar

79 For the report of the committee, see Records of Third Assembly, Minutes of the First Committee, p. 92;Google Scholar Plenary Meetings, II, p. 151.Google Scholar

80 Records of Third Assembly, Plenary Meetings, I, 218.Google Scholar

81 The agenda of the Institute of International Law for the meeting at Brussels, August 4–11, 1923, included the following item: “Examen critique des Articles 10 et 18 du Pacte de la Société des Nations.” Google Scholar The rapporteurs, MM. Adatci and Ch. De Visscher, submitted propositions as follows:

I

L’article 18, interprété conformement à son esprit, n’interdit pas d’apporter à la régie de l’enregistrement certaines dérogations telles que celles qui ont été provisoirement approuvées par la deuxieme assemblée de la Société des Nations et qui tendent à dispenser de la présentation a l’enregistrement les conventions étrangéres par leur objet aux relations politiques internationales ou qui n’ont pour but que de régler, sans rien modifier, les conditions techniques d’exécution d’un acte déjà enregistré

II

Le défaut d’enregistrement n’affecte pas l’existence d’un traité devenu définitif entre parties par l’accomplissement des formalités diplomatiques requises pour sa perception; il tient simplement en suspens, tant entre les parties, membres toutes deux de la Société des Nations ou liées par les traités de paix, que vis-à-vis de la Société des Nations, la force executoire des engagements conventionnels.

L’enregistrement opére avec effet rétroactif: il rend exigibles toutes les obligations nées du traité depuis le jour où il est devenu définitif ou depuis la date fixée par les Parties pour sa mise en vigueur. (4 Revue de Droit International (3 ser.), p. 671.)Google Scholar

82 A. 8. 1924, p. 4.Google Scholar

83 League of Nations, Registration of Treaties, No. 41, February, 1925.Google ScholarPubMed

84 Registrations of adhesions, denunciations, ratifications, etc., not included.

85 18 Treaty Series, 388.Google ScholarPubMed

86 An agreement for carrying out the provisions of the Treaty of Rapallo, signed at Rome on October 23 1922, was not put into effect by exchange of ratifications until February 26, 1923. 18 Treaty Series, 406.Google ScholarPubMed

86a British Parliamentary Papers, 1921, Cmd. 1560. See the author’s discussion of “The Irish Boundary Question” in this JOURNAL (January, 1925), vol. 19, pp. 150–155.Google Scholar

86b 26 Treaty Series, p. 10.Google ScholarPubMed

86c C. 761. M. 261. 1924. V.Google Scholar

86d C. 770. M. 272.1924.Google Scholar

87 1 Treaty Series, p. 13.Google ScholarPubMed

88 See Myers, Manual of Collections of Treaties (1922), pp. 17 ff.Google Scholar A Tentative List of Treaty Collections was published by the U. S. Department of State in 1919, in preparation for the Paris Peace Conference. See, also, Fauchille, Traité de Droit International Public, I, 143.Google Scholar An interesting study of “Les Recueils des Traités Internationaux,” by de Martitz, M. F., was published in 1886 in 18 Revue de Droit International, 168.Google Scholar

89 See Myers, op. cit., pp. 68–373.Google Scholar Collections have also been compiled by subject-matter. Ibid., pp. 374–425.

90 17 Kritische Vierteljahrsschrift fur Gesetzgebung und Rechtswissenschaft (1875), 346.Google Scholar See Rolin-Jaequemyns, M. in 7 Revue de Droit International et de Legislation Comparie (1875), 291, 300.Google Scholar

91 Annuaire de I’lnstitut, VII, 285.Google Scholar

92 Annuaire de I’Institut, VIII, 232.Google Scholar

93 Annuaire de I’Institut, IX, 303.Google Scholar See also 19 Revue de Droit International, 178.Google Scholar

94 Annuaire de I’Institut, X, 247.Google Scholar The observations of Count Kamarowsky are also published in 20 Revue de Droit International, 376.Google Scholar

95 Scott, Resolutions of the Institute of International Law (1916), p. 93.Google Scholar

96 See 2 U. S. Treaties and Conventions (Malloy), p. 1996.Google Scholar See also Article 6 of the Convention on the Simplification of Customs Formalities, of November 3, 1923. The United States makes regular appropriations for “sustaining the international bureau at Brussels for the translation and publication of customs tariffs.” See 41 Stat. 1209. In 1921, $6000 was appropriated. Cf., the Convention on Publicity of Customs Documents, Santiago, May 3, 1923.Google Scholar

97 Annuaire de I’Institut, XI, p. 322.Google Scholar

98 Ibid., p. 328.

99 Annuaire de I’Institut, XII, pp. 234, 237, 252.Google Scholar For the English texts, see Scott, Resolutions of the Institute of International Law (1916), 97 ff.Google Scholar

100 Annuaire de I’Institut, XII, 256.Google Scholar

101 Annuaire del’Institut, XII, 228.Google Scholar

102 Acles de la Conférence diplomatique concernant la cériation d’une union internationals pour la publication des Traités, pp. 12, 13.Google Scholar See Mr.Denys, P. Myers’ admirable appendix on “The Publication of Treaties,” in Myers, Manual of Collections of Treaties, p. 601;Google Scholar Rost-worowski, “L’Union Internationale pour la Publication des Traites,” 1 Revue Generate de Droit International Public, 135;Google Scholar 2 Revue Generate de Droit International Public, 221–229.Google Scholar

103 An interparliamentary conference meeting in Brussels in August, 1895, had resolved in favor of the creation of such a union. 2 Revue Générale de Droit International Public, 544.Google Scholar

104 3 Revue Generate de Droit International Public, 589.Google Scholar

105 In 1902, the Institute did not find time to consider it, though it seems to have figured in the agenda. 19 Annuaire de I’Institut, 350.Google Scholar In 1906, the Third International Conference of American States adopted a resolution which attributed to the Bureau of the American Republics the duty “to compile and classify information respecting the treaties and conventions between the American Republics and between the latter and non-American states,” and provided that each country should transmit to the bureau two copies of official publications relating to treaties. See U. S. Foreign Relations, 1906, pp. 1603, 1605.Google Scholar As a result of this resolution, information concerning international treaties is now published in the Bulletin of the Pan-American Union. See 56 Bulletin of the Pan-American Union, pp. 89, 192, 297, 506, 618.Google Scholar

In 1914, a Conference of American Teachers of International Law held in Washington recommended “that there be published in a cheap and convenient form all documents of state, both foreign and domestic, especially Latin-American, bearing upon international law, including treaties, documents relating to arbitration, announcements of state policy and diplomatic correspondence, and that the aid of the Department of State be solicited in securing copies of such documents for publication.” See the Report of the Conference, p. 69.Google ScholarPubMed

106 In Volumes 4 and 7.Google Scholar

107 On the difficulties of publishing translations, see 2 Revue Générale de Droit International Public, 228.Google Scholar

108 The texts of all treaties registered have not been published. The Treaties of Peace of Versailles, St. Germain and Neuilly, as well as the agreement of the Allied and Associated Powers with Germany concerning military occupation in the Rhine territories, the treaty with Poland of June 28, 1919, the treaty with the Serb-Croat-Slovene State of September 10, 1919, and with Czechoslovakia of the same date were not reproduced, owing to the worldwide publicity which they had already obtained; but a list of their titles and serial numbers of registration was circulated as an addendum to the Treaty Series.

109 Six indexes have been published: for Volumes 1–3, Volumes 4–7, Volumes 8–11, Volumes 12–15; Volumes 16–19, Volumes 20–23.