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The Survival of the Secret Treaty: Publicity, Secrecy, and Legality in the International Order

Published online by Cambridge University Press:  29 November 2017

Megan Donaldson
Megan Donaldson*
Affiliation:
Junior Research Fellow in the History of International Law, King's College, Cambridge; Lauterpacht Centre for International Law. Email: [email protected].
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Abstract

This article offers the first detailed history of the norm of treaty publication as it has evolved over the last century. Drawing on both public debates and archives of foreign ministries, it traces how, and why, secret treaties have persisted, even in liberal democracies. It challenges assumptions of ever-greater transparency over time, and complicates the associations made—by interwar reformers and international lawyers today—between the norm of treaty publication and ideals of legality in the international order.

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Articles
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American Journal of International Law , Volume 111 , Issue 3 , July 2017 , pp. 575 - 627
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Copyright © 2017 by The American Society of International Law 

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References

1 “Publicity” is the term prevailing in the early twentieth century for what would today be captured by “transparency.”

2 Article 18 read: “Every treaty or international engagement entered into hereafter by any Member of the League shall be forthwith registered with the Secretariat and shall as soon as possible be published by it. No such treaty or international engagement shall be binding until so registered.”

3 As will become clear, the definition of “treaty” is crucial to the developments traced here. Unless otherwise indicated, my use reflects the scope of the term as now defined in the Vienna Convention on the Law of Treaties (VCLT), opened for signature May 22, 1969, 1155 UNTS 331: a written agreement between states, governed by international law. This is distinct from the meaning of “treaty” and “traité” in, for example, the U.S. and French Constitutions.

4 Id. Art. 80. By the time of the drafting of the Vienna Convention, the relevant article was considered to be codifying a customary requirement. See Klein, Pierre, Article 80: Registration and Publication of Treaties , in 2 The Vienna Conventions on the Law of Treaties: A Commentary, 1797, 1798–99 (Corten, Olivier & Klein, Pierre eds., 2011)Google Scholar.

5 For a recent defense of limited secrecy in international commitments, both legal and political, see, e.g., Deeks, Ashley S., A (Qualified) Defense of Secret Agreements , 49 Ariz. St. L.J. 713 (2017)Google Scholar.

6 See, e.g., Fitzmaurice, Malgosia, The Identification and Character of Treaties and Treaty Obligations Between States in International Law , 73 Brit. Y.B. Int'l L. 141 (2003)Google Scholar.

7 See, e.g., Chinkin, Christine, A Mirage in the Sand? Distinguishing Binding and Non-binding Relations Between States , 10 Leiden J. Int'l L. 223 (1997)Google Scholar; Jan Klabbers, The Concept of a Treaty in International Law (1996); Anthony Aust, Modern Treaty Law and Practice 46–49 (3d ed. 2013); Klabbers, Jan, Not Re-visiting the Concept of Treaty , in 40 Years of the Vienna Convention on the Law of Treaties 29 (Orakhelashvili, Alexander & Williams, Sarah eds., 2010)Google Scholar.

8 See, e.g., Paul Reuter, Traités et transactions. Reflexions sur l'identification de certains engagements conventionnels, in Le Droit international à l'heure de sa codification. Études en l'honneur de Roberto Ago I, at 399 (1987). What I call “ancillary texts” are texts which, taken together with a primary text, form a sort of transactional package, although their relation to the primary text may be ambiguous. They may be, but are not necessarily, part of the travaux préparatoires, or analyzed as “interpretive declarations” or “understandings.”

9 See, e.g., Lipson, Charles, Why Are Some International Agreements Informal? , 45 Int'l Org. 495 (1991)Google Scholar; Abbott, Kenneth W. & Snidal, Duncan, Hard and Soft Law in International Governance , 54 Int'l Org. 421 (2000)Google Scholar; Raustiala, Kal, Form and Substance in International Agreements , 99 AJIL 581 (2005)Google Scholar. For analyses which grapple with law and politics together, see, e.g., Surabhi Ranganathan, Strategically Created Treaty Conflicts and the Politics of International Law (2014); Grégoire Mallard, Fallout: Nuclear Diplomacy in an Age of Global Fracture (2014).

10 See, e.g., Hyde, Charles Cheney, Agreements of the United States Other Than Treaties , 17 Green Bag 229, 229 (1905)Google Scholar; L. Oppenheim, 1 International Law: A Treatise 536–37 (1905); and scholarship summarized in Louis Michon, Les Traités internationaux devant les Chambres 416–20 (1901).

11 Constitutional authority for which was grounded in, for example, powers delegated by Congress to make agreements on certain matters; or the president's own powers (as commander in chief, as the sole organ of foreign negotiation, etc.). See, e.g., Hyde, supra note 10; Moore, John Bassett, Treaties and Executive Agreements , 20 Pol. Sci. Q. 385 (1905)Google Scholar; Samuel B. Crandall, Treaties, Their Making and Enforcement 102–40 (2d ed. 1916).

12 The Statutes at Large were intended to contain “agreements” as well as treaties made with Senate advice and consent. Printing Act of 1895, ch. 23, 53d Cong., §73, 28 Stat. 601.

13 See, e.g., Wright, Quincy, The Control of the Foreign Relations of the United States: The Relative Rights, Duties, and Responsibilities of the President, of the Senate and the House, and of the Judiciary, in Theory and in Practice , 60 Proc. Am. Phil. Soc'y 99, 323, 331 (1921)Google Scholar; Simpson, William Hays, Legal Aspects of Executive Agreements , 24 Iowa L. Rev. 67, 78 (1938)Google Scholar.

14 This “agreement” was in fact contained in a long series of diplomatic correspondence: see subsequent discussion in Memorandum by the Secretary of State of a Conversation with the Japanese Ambassador (Hanihara), Mar. 27, 1924 , in 2 Papers Relating to the Foreign Relations of the United States, 1924, at 337–38 (1939)Google Scholar. The American government had initially wished the agreement to be a Senate-approved treaty, but this would have exposed the Japanese government to domestic criticism for surrendering rights under an earlier treaty, and acquiescing to racially-driven resentment. Raymond A. Esthus, Theodore Roosevelt and Japan 158–64 (1967). The agreement did ultimately operate beyond the terms in office of the parties to the correspondence.

15 An 1878 British Foreign Office (FO) memorandum lists only ten or so instances of secret treaties of alliance concluded by Britain since the beginning of the nineteenth century. Oakes, Instances in Which Great Britain Has Been Party to Secret Treaties of Alliance, Subsidy, FO 881/3665 (July 12, 1878). There were, however, further secret treaties other than alliances.

16 Loi constitutionnelle du 16 juillet 1875 sur les rapports des pouvoirs publics, Art. 8, as translated in Henry C. Lockwood, Constitutional History of France 406, 407 (1890).

17 Id.

18 Dauzat, Albert, La Convention et les traités secrets , LXXII Revue politique et parlementaire 371, 379 (1912)Google Scholar; Jèze, Gaston, Le Pouvoir de conclure les traités internationaux, et les traités secrets , XXIX Revue du droit public et de la science politique en France et a l'etranger 313 (1912)Google Scholar.

19 See, e.g., L. Oppenheim, 1 International Law: A Treatise 664–65 (Ronald F. Roxburgh ed., 3d ed. 1920) (emphasis in original; footnote in original omitted).

20 Note also distinctions between traité-contrat and traité-loi; and between mere contracts (involving disparate wills but agreement on a shared external end) and Vereinbarung (involving a genuine fusion of wills), with only the latter capable of creating law rather than subjective rights. Heinrich Triepel, Droit international et droit interne 49–61 (René Brunet trans., 1920); McNair, Arnold D., The Functions and Differing Legal Character of Treaties , 11 Brit. Y.B. Int'l L. 100, 105–16 (1930)Google Scholar.

21 E.g., Jules Basdevant queried whether the distinction between “treaties” (i.e., here, agreements concluded with the intervention of the supreme treaty-making authority within a state) and agreements made in some other form was relevant to the obligatory character of the texts. Basdevant, Jules, La Conclusion et la rédaction des traités et des instruments diplomatiques autres que les traités , 15 Recueil des Cours 535, 545 (1926)Google Scholar. This hint is not further explored. See also McNair, supra note 20.

22 Kant, Immanuel, Perpetual Peace , in Kant: Political Writings 93, 94, 114–15 (Reiss, Hans ed., Nisbet, H. B. trans., 2d ed. 1991)Google Scholar.

23 Particularly the American and French Revolutions, and in nineteenth-century British debates over free trade. This and following paragraphs condense material from Megan Donaldson, From Secret Diplomacy to Diplomatic Secrecy: Secrecy and Publicity in the International Legal Order c. 1919–1950 (2016) (unpublished JSD dissertation, New York University School of Law) (on file with author).

24 Institut de Droit international, Voeu concernant la publication des traités (Sept. 11, 1885), available at http://www.idi-iil.org/app/uploads/2017/06/1885_brux_01_fr.pdf. An 1891 proposal for the formation of an International Union to oversee publication of treaties petered out. Denys Peter Myers, Manual of Collections of Treaties and of Collections Relating to Treaties 600–03 (1922).

25 See Jèze, supra note 18, at 318, 320–21. A demand for constitutional revision of Article 8 failed (146 votes in the Chambre des Députés and 372 against). Id. at 319.

26 See, e.g., publication of English texts under the aegis of the Union of Democratic Control. The Secret Treaties and Understandings: Text of the Available Documents (F. Seymour Cocks ed., 1917).

27 See, e.g., Statement of War Aims as Adopted at a Joint Conference of the Societies Affiliated with the British Trades Union Congress and the British Labour Party [Dec. 28, 1917], reproduced in British Labor and the War: Reconstructors for a New World 343 (Paul U. Kellogg & Arthur Gleason eds., 1919).

28 See Arno Mayer, Political Origins of the New Diplomacy, 1917–1918 (1959); Jackson, Peter, French Security and a British ‘Continental Commitment’ After the First World War: A Reassessment , 126 English Hist. Rev. 345, 347–49 (2011)Google Scholar; George Bernard Noble, Policies and Opinions at Paris, 1919: Wilsonian Diplomacy, the Versailles Peace, and French Public Opinion 301–52 (1935) (on the shifting importance given to “open covenants” in French press debates).

29 Woodrow Wilson, The Terms of Peace [Address to both Houses of Congress, Jan. 8, 1918], in In Our First Year of War: Messages and Addresses to the Congress and the People March 5, 1917, to April 6, 1918, at 150, 156 (1918).

30 David Hunter Miller (legal adviser to the American Commission to Negotiate Peace) introduced a requirement for publicity of treaties; Robert Lansing (U.S. secretary of state) added the component of registration with the Secretariat (although Alfred Zimmern, then serving in the Political Intelligence department of the FO, had proposed something similar); and Wilson himself contributed the provision that no treaty should be binding unless registered. David Hunter Miller, 1 The Drafting of the Covenant 19, 29, 49, 198 (1928).

31 The Registration and Publication of Treaties as Prescribed Under Article 18 of the Covenant of the League of Nations, as published in 1 LNTS 9, para. 1 (emphasis in original) [hereinafter 1920 Secretariat Memorandum]. See also, e.g., M. F. Larnaude, La Société des Nations 39 (1920).

32 Due to fears that a robust reading might open the path to revision of the peace treaties, Article 19 was given a relatively narrow interpretation, and none of the efforts to invoke the provision came to fruition. Hermann Mosler, The International Society as a Legal Community 289–90 (1980).

33 1920 Secretariat Memorandum, supra note 31, at para. 3.

34 Id., para. 5. The Memorandum permitted treaties to be submitted for registration by one party alone, provided that the text had been finally agreed between the parties (para. 8), and suggested that parties should deposit “a textual and complete copy [of the treaty or engagement] with all appurtenant declarations, protocols, ratifications, etc… . with an authentic statement that this text represents the full contents of the Treaty or Engagement” (para. 6). British officials, apparently not aware of the arrangements in the 1920 Secretariat Memorandum, circulated to states alternative proposals, namely that bilateral treaties be registered by both parties jointly, but multilateral treaties be registered only by the government of the state in which the treaty was signed. Circular Curzon to representatives abroad, Sept. 20, 1920, FO 372/1409 [File No. 208994] [“FO” in archival references denotes National Archives (UK), Foreign Office papers (held at Kew)]. The Secretariat, concerned that placing the onus on the headquarters government in this way would have made registration contingent on the diligence of a single government, reasserted the authority of the Council-approved Memorandum. Drummond to Hankey, Oct. 1, 1920, FO 372/1409 [T11337/9008/350].

35 “Questions Connected with the Registration of Treaties which Arose during the Council Meeting at Rome, in May, 1920,” enclosed with Van Hamel to Hurst and others, May 6, 1921, League of Nations Archives, Registry Files, R1220 [17/12549/69] [“LNA R” in archival references denotes League of Nations Archives, Registry Files (held in Geneva)].

36 “Accord” is probably best translated as “agreement,” but I follow most contemporary English-language sources in simply adopting the French term.

37 Helmreich, J. E., Convention politique ou accord militaire? La Négociation de l'accord franco-belge de 1920 , 159 Guerres mondiales et conflits contemporains 21, 25–26 (1990)Google Scholar; Helmreich, J. E., The Negotiation of the Franco-Belgian Military Accord of 1920 , 3 French Historical Studies 360, 374 (1964)Google Scholar. Helmreich worked from the Belgian archives. My research in the archives of the French foreign ministry, while likely not capturing all military deliberations, captures the French approach to the accord's legal form.

38 Helmreich, Convention politique, supra note 37, at 24.

39 Basdevant observes that “military conventions” bind states though not embodied in “diplomatic” instruments. Basdevant, supra note 21, at 626.

40 Helmreich, Convention politique, supra note 37, at 29.

41 This accord is now reproduced in 2 Documents Diplomatiques Français 1920, at 566 (1999). On the contents, see Helmreich, Convention politique, supra note 37, at 28; Helmreich, Negotiation, supra note 37, at 377.

42 For the final text of the letters, see Exchange of Letters of 10 and 15 September, 1920, Between the Belgian and French Governments, Concerning the Approval of the Franco-Belgian Military Understanding of September 7, 1920, 2 LNTS 128.

43 Helmreich, Negotiation, supra note 37, at 377.

44 Note pour Monsieur Berthelot, Oct. 18, 1920, MAE CPC 73 [Z126/10] [“MAE CPC” in archival references denotes Archives diplomatiques (France), “Correspondance politique et commerciale” series (held at La Courneuve)].

45 House of Commons Debates, 5th Ser., vol. 133, col. 1374W (Oct. 25, 1920), cols. 1549–50 (Oct. 26, 1920); vol. 134, cols. 35–36 (Nov. 1, 1920) [hereinafter HC Deb.].

46 Minute Mounsey, Sept. 15, 1920, FO 372/1409 [T10214/9008/350].

47 MAE to Embassy, Brussels (with handwritten amendments), Oct. 24, 1920, MAE CPC 73 [Z126/10].

48 Blackett [Treasury] to Under-Secretary of State, Sept. 7, 1920, FO 372/1409 [T10214/9008/350].

49 Minute J. Balfour, Oct. 1, 1920, FO 371/5455 [W493/32/4].

50 Blackett [Treasury] to Under-Secretary of State, Sept. 29, 1920; Minute Crowe, Oct. 3, 1920; both FO 372/1409 [T11090/9008/350].

51 Minute Villiers, Oct. 1, 1920, FO 371/5455 [W493/32/4] (emphasis added).

52 Curzon to Cecil, Oct. 5, 1920, FO 371/5455 [W493/32/4].

53 Cecil to Curzon, Oct. 6, 1920, FO 371/5455 [W857/32/4].

54 Memo Balfour to Hurst, Oct. 20, 1920, FO 372/1410 [T12369/9008/350].

55 Id.

56 See infra note 75 (the French text put the emphasis on the Secretariat’s duty to register, rather than the members' duty to register with the Secretariat).

57 Memo Hurst to Balfour, Registration of Treaties Under Article 18 of the Pact, undated [c. Oct. 1920], FO 372/1410 [T12369/9008/350].

58 Note, Enregistrement des traités, Nov. 11, 1920, MAE SDN 71 [“MAE SDN” in archival references denotes Archives diplomatiques (France), “Société des Nations” series (held at La Courneuve)].

59 Tufton to [MAE], Nov. 11, 1920, MAE SDN 71. See also minute Hurst, Oct. 29, 1920, FO 372/1410 [T12369/9008/350].

60 Minute Tufton, Nov. 8, 1920, FO 371/5479 [W1832/160/98] (emphasis added).

61 See, e.g., Teixidor, Note pour Dr. van Hamel, Oct. 1, 1920, LNA R1227 [17/7252/7252]; Drummond to Monnet, Oct. 4, 1920, LNA R1227 [17/7252/7252]; Drummond to Balfour; Drummond to Bourgeois; both Aug. 20, 1920, LNA R1219 [17/6077/69].

62 Teixidor, L'Enregistrement de l'accord franco-belge conclu le mois d'août passé, Sept. 28, 1920, LNA R1227 [17/7252/7252].

63 Id. On Article 20 of the Covenant, see infra text immediately following note 32.

64 Memorandum Drummond [to van Hamel], Oct. 1, 1920, LNA R1227 [17/7252/7252].

65 Id.

66 Drummond to French MAE, Belgian MAE, Nov. 10, 1920, LNA R1227 [17/7857/7857].

67 Anzilotti to Drummond, Nov. 11, 1920, LNA R1227 [17/8281/7857].

68 Id. (emphasis in original).

69 Anzilotti referred to an agreement accepted as binding by the parties, but not registered, as imposing “moral” (perhaps as opposed to “legal”) obligations. Id. Drummond thought unregistered treaties were: “Entirely outside the cognizance of the League + therefore impose no moral or material obligation on the other members, nor can any appeal to the League be based upon them … binding between the contracting parties only for such time as both feel bound by them.” Handwritten comments by Drummond, Nov. 21, 1920, on Anzilotti [to Drummond], Nov. 16, 1920, LNA R1227 [17/8281/7857]. However, the fact that both believed there was no unconditional obligation to register treaties suggests that they still, at some level, understood unregistered texts as treaties.

70 Drummond had concluded that the Secretariat must “assume that the Convention contains nothing contrary to Article 20, and rely on the pledged word of France and Belgium in this respect.” Memorandum Drummond [to van Hamel], Oct. 1, 1920, supra note 64.

71 Anzilotti to Drummond, Nov. 11, 1920, supra note 67.

72 Minutes of 7th Plen. Mtg. (Nov. 19, 1920), in League of Nations. Records of the First Assembly. Plenary Meetings 148, 155–156 (1920) [hereinafter First Assembly: Plenary Meetings].

73 Id. at 156.

74 Id. at 160; see also comments of van Karnebeek in Minutes of 10th Plen. Mtg. (Nov. 23, 1920), in First Assembly: Plenary Meetings, supra note 72, at 203, 209.

75 “Tout traité ou engagement international conclu à l'avenir par un membre de la Société devra être immédiatement enregistré par le secrétariat et publié par lui aussitôt que possible. Aucun de ces traités ou engagements internationaux ne sera obligatoire avant d'avoir été enregistré.”

76 See, e.g., Charles Rousseau, 1 Principes généraux du droit international public 316–17 (1944).

77 Minutes of 8th Plen. Mtg. (Nov. 20, 1920) (original erroneously marked Nov. 10), in First Assembly: Plenary Meetings, supra note 72, at 162, 177.

78 In which members “solemnly undertake that they will not hereafter enter into any engagements inconsistent with the terms” of the Covenant.

79 Spicer to Drummond, Feb. 15, 1921, LNA R1220 [17/11221/69].

80 Instructions to the Law Officers to Advise [c. Dec. 11, 1920], FO 372/1640 [T1443/211/350]. The sorts of arrangements about which the Treasury were concerned in category (b) included some which were “not even published to our own Parliament.” Memorandum B, enclosed in Gower to Hankey, Dec. 11, 1920, FO 372/1640 [T531/211/350] (note that in this earlier memorandum, the enumeration is different, and what would later be category (b) is here labelled category (c)).

81 Opinion of the Law Officers of the Crown, Jan. 25, 1921, FO 372/1640 [T1443/211/350].

82 Appointment of the Committee Entrusted with the Examination from a Legal Point of View of the Scope of Article 18 of the Covenant , in 2 League of Nations Official Journal 112 (1921)Google Scholar. Of six members nominated by the League Council, five accepted the invitation: Scialoja (former Italian foreign minister and now delegate to the League); Fromageot (legal adviser to the French MAE); Hurst (legal adviser to the FO); Struycken (adviser to the Dutch government); and Maurice Bourquin (legal adviser to the Belgian Ministry of Foreign Affairs).

83 Report of the Committee Appointed to Study the Scope of Article 18 of the Covenant from a Legal Point of View, Aug. 13, 1921, C.256.M.197.1921.V (A.C.31), at 3 [hereinafter Article 18 Committee Report].

84 “The contract exists from the moment that the consent of the parties has been expressed in the proper forms, and consequently the Powers which have concluded it are no longer free to escape unilaterally from its obligations. But … the new registration formality … is a condition which suspends the obligation to fulfil the conventional engagements.” Id. at 4 (emphasis in original).

85 Id. at 5.

86 Id. at 7. The proposed insertion read: “No treaty [etc.] … may be invoked before the Council or the Assembly, or before the [Permanent Court of International Justice (PCIJ)] or before any other organisation under the authority of the League unless it has been previously registered.”

87 Id. at 6.

88 Records of the Second Assembly: Meetings of the Committees, at Annex 11 (1921) [hereinafter Second Assembly: Committees].

89 1st Committee, 7th Mtg. [Sept. 26, 1921], in Second Assembly: Committees, supra note 88, at 69–70 (Hurst).

90 Id. at 70.

91 Id. at 71; 1st Committee, 8th Mtg. [Sept. 27, 1921], in Second Assembly: Committees, supra note 88, at 75.

92 1st Committee, 8th Mtg. [Sept. 27, 1921], in Second Assembly: Committees, supra note 88, at 75–76.

93 With some minor variations, in Second Assembly: Committees, supra note 88, at 195–201 [hereinafter First Committee Report].

94 A Threat to the League. The Clause in the Covenant Against Secret Treaties. Hague Committee's Recommendation that it Be Weakened, Manchester Guardian, Sept. 5, 1921, at 9.

95 Correspondence cited in Millen-Penn, Ken, Democratic Control, Public Opinion, and League Diplomacy , 157 World Aff. 207, 211–12 (1995)Google Scholar.

96 See, e.g., Distrust of the Coalition, Times [London], Nov. 25, 1921, at 5; Anson to Secretary-General, Oct. 8, 1921, LNA R1220 [17/16561/69].

97 Cecil agreed that some means should be devised to exempt minor engagements, which it would be very inconvenient to publish, from the scope of Article 18, but was dissatisfied with the Article 18 Committee's proposals.

98 32d Plen. Mtg. [Oct. 5, 1921], in Records of the Second Assembly 851 (1921) [hereinafter Second Assembly: Plenary].

99 1st Committee, 8th Mtg. [Sept. 27, 1921], in Second Assembly: Committees, supra note 88, at 75–76. See also, e.g., Seferiades (Greece), id. at 77; Fernandes (Brazil) in 32d Plen. Mtg. [Oct. 5, 1921], in Second Assembly: Plenary, supra note 98, at 850; First Committee Report, supra note 93, at 197.

100 Second Assembly: Plenary, supra note 98, at 851.

101 33d Plen. Mtg. [Oct. 5, 1921], in Second Assembly: Plenary, supra note 98, at 895.

102 In 1922, Article 18 was back on the agenda of the First Committee, with Hurst, Struycken, and Rolin urging that amendments be adopted, but supporters of Article 18 again managed to postpone consideration of it.

103 Raoul Genet, 3 Traité de diplomatie et de droit diplomatique 451 (1932).

104 Hudson to van Hamel, July 9, 1923, LNA R1220 [17/12863/69].

105 Minute Drummond, Aug. 17, 1922, LNA R1222 [17/22111/69].

106 Examen de l'organisation et des statuts de la Société des Nations. Rapport de MM. Adatci et Ch. de Visscher , 8 Annuaire de l'IDI 22, 63 (1923)Google Scholar.

107 Id. at 75, 81.

108 The Havana Convention on Treaties, Feb. 20, 1928, required publication of treaties after exchange of ratifications but stipulated that a failure to discharge this “international duty” did not affect the force of the treaty, or fulfilment of obligations contained therein: Art. 4. See text reproduced in 29 AJIL Supp. 1205. However, the Harvard Draft convention on the law of treaties assumed that Article 18 was operative, and tried to develop it further. Advisory Committee of the [Harvard] Research in International Law, Codification of International Law Part III: Law of Treaties , 29 AJIL Supp. 657–1226, 912–18 (1935)Google Scholar [hereinafter Harvard Draft].

109 See, e.g., Walther Schücking & Hans Wehberg, Die Satzung des Völkerbundes: Kommentiert 655–60 (2d ed. 1924); Hudson, Manley O., Legal Effect of Unregistered Treaties in Practice, Under Article 18 of the Covenant , 28 AJIL 546 (1934)Google Scholar; Lambiris, Jean, Enregistrement des traités d'après l'article 18 du Pacte de la Société des Nations , in 7 Revue de Droit International & de Législation Comparée (3d Ser.) 697 (1926)Google Scholar; Paul Fauchille, 1(3) Traité de droit international public 335–45 (1926); Charles Cheney Hyde, 2 International Law Chiefly as Interpreted and Applied by the United States 6–7 (2d ed. 1922); C. Sevens, Le Régime nouveau des traités internationaux (1925); Jean Ray, Commentaire du Pacte de la Société des Nations selon la politique et la jurisprudence des organes de la Société 545–58 (1930); Dionisio Anzilotti, Cours de droit international 374–92 (Gilbert Gidel trans., from 3d Italian ed. 1929); L. Oppenheim, 1 International Law: A Treatise 730–32 (A. D. McNair ed., 4th ed. 1928); Georges Scelle, 2 Précis de droit international: Principes et systématique 484–88 (1934); Ladislas Reitzer, L'Enregistrement des traités internationaux, in Revue générale de droit international public 67 (1937); Edoardo Vitta, La Validité des traités internationaux 238–47 (1940).

110 There were at least two cases in which the PCIJ adjudicated matters arising under an unregistered treaty, although in both cases, at least one party to the unregistered treaty was a non-member, and the instruments were well-known to the League, which might have made non-registration politically, if not legally, trivial. In further cases, the special agreement conferring jurisdiction was itself not registered. For details see Hudson, Legal Effect, supra note 109, at 552.

111 Resource constraints may have dissuaded the Secretariat from trying to increase submission rates over time: even after a block subscription/subsidy organized by Manley Hudson and channelled through ASIL in 1923–24, there were ongoing struggles finding funds for proofreading and printing the Treaty Series.

112 Vitta, supra note 109, at 247.

113 There was still some disagreement about whether a failure to satisfy the demands of domestic law affected the validity of a treaty under international law. See Harvard Draft, supra note 108, at 996–1008.

114 Ponsonby to Hurst, Feb. 1, 1924, FO 372/2114 [T1291/1291/381].

115 Hurst, Submission of Treaties to Parliament before Ratification, Feb. 5, 1924, FO 372/2114 [T1291/1291/381] [hereinafter Hurst, Submission of Treaties].

116 HC Deb., supra note 45, at vol. 171, col. 2003 (Ponsonby, Apr. 1, 1924). Ponsonby's statement had referred to the need to capture “agreements, commitments, and understandings by which the nation may be bound … although no signed and sealed document may exist,” but this aspiration was largely forgotten in the years to come.

117 Subject to a capacity to set it aside at Cabinet discretion in urgent cases (Parliament to be informed thereafter). For subsequent refinements of Parliamentary procedure, see Evans and Anderson, The Presentation of Treaties to Parliament: The Ponsonby Rule, Mar. 31, 1969, paras. 17–24, FCO 53/81 [“FCO” in archival references denotes National Archives (UK), Foreign & Commonwealth Office papers (held at Kew)].

118 Hurst did, however, comment on the difficulty of making ex ante distinctions between important and unimportant treaties. Hurst, Submission of Treaties, supra note 115.

119 See, e.g., discussion in Harvard Draft, supra note 108, at 696–98.

120 Wallace McClure, International Executive Agreements: Democratic Procedure Under the Constitution of the United States, at xii–xiii (1941).

121 Hudson, Manley O., Registration of United States Treaties at Geneva , 28 AJIL 342, 344 (1934)Google Scholar.

122 On Hudson's personal involvement, see Hudson to Avenol, Feb. 1, 1934, LNA R3826 [3D/9266/2084].

123 Correspondence excerpted in Hudson, Registration of United States Treaties at Geneva, supra note 121, at 344–45.

124 Note pour Monsieur Berthelot, [Enregi]strement des traités, May 1, 1928, with handwritten annotations by Fromageot, MAE SDN 20 [IA.4/3].

125 Id.

126 See supra text at note 81. Beckett, then second legal adviser, thought the Law Officers' opinion “not altogether convincing.” Minute Beckett, Jan. 19, 1933, FO 371/15927 [C5374/455/62]. He clarified: “The real test is the nature [rather than the form, or manner of conclusion] of the agreement… . If the agreement is one which is intended to create binding legal obligations under international law, it should be registered.” Minute Beckett, Mar. 9, 1933, FO 371/16630 [C77/77/3].

127 See, e.g., an Anglo-Uruguayan agreement of 1927, expressed as being between the two governments, providing for the handing over to the Reparations Commission of certain German-flagged ships requisitioned by the government of Uruguay during the war and the handling of expenses related thereto. The Treasury resisted registration on the basis that “[t]he Agreement is not of course a Treaty, but an executive arrangement for dealing with reparation deliveries, such as is made by various Powers every few months.” Waley to Troutbeck, Jan. 14, 1927, FO 371/12128 [C 416/119/18]. In the FO, an official noted: “It is awkward, but there must be a considerable number of such agreements that we have not registered, and in some cases have not seen… . It is difficult to draw any artificial distinction between what we ought to register … and what we need not … .” Minute Ritchie, Jan. 21, 1927, FO 371/12128 [C 416/119/18]. The agreement was not submitted for registration by Uruguay either.

128 Enclosure in Graham to Chamberlain, Mar. 11, 1927, FO 371/12236 [E1369/22/91].

129 Id.

130 Id., para. 4.

131 Ritchie thought it was not; another official retorted: “It has the appearance of being an international engagement.” Osborne and Oliphant characterized it as a “gentlemen's agreement,” meaning, in this context, not legally binding. Minutes Mar. 30, 31, and Apr. 1, 4, 1927, FO 371/12236 [E1369/22/91].

132 Minute [illegible], Apr. 8, 1927, FO 371/12236 [E1369/22/91].

133 Draft Memorandum for the Middle East (Ministerial) Sub-Committee of the Committee of Imperial Defence, Future Policy in regard to the Yemen [c. July 1937], FO 371/20781 [E3941/872/91].

134 Id.

135 Eden eventually stated the British aspect of the Understanding in the Commons: “It has always been, and it is to-day, a major British interest that no great Power [including Britain] should establish itself on the Eastern shore of the Red Sea.” HC Deb, supra note 45, at vol. 326, col. 1805 (July 19, 1937). The existence of written terms was kept secret even after this point, and inquiries discouraged. See minutes [illegible], Oct. 6, 1927, and Oct. 12, 1927, FO 371/20781 [E5795/872/91].

136 See, e.g., insistence on publication of Anglo-Persian notes concerning jurisdictional arrangements for a naval facility on Henjam island. This would involve “loss of face” to the Persian Government (Clive [Tehran] to FO, Sept. 3, 1930, FO 371/14528 [E4773/20/34]). However, it was considered vital that these notes be published in order to avoid difficulties with local officials. Flint (Admiralty) to Under Secretary of State, FO, Sept. 12, 1930, FO 371/14528 [E4932/20/34]. Some officials rejected the absolute position that unregistered notes could not be invoked as a legal engagement, but the primary concern in doing so was to avoid making statements which might encourage the Persian Government to flout undertakings made in regular diplomatic correspondence. Minute Rendel, Sept. 11, 1930, FO 371/14528 [E4773/20/34].

137 Treaty of Alliance Between His Majesty in Respect of the United Kingdom and His Majesty the King of Iraq, with an Exchange of Notes … Together with Notes Exchanged Embodying a Separate Financial Agreement, UK Treaty Series No. 15 (1931), Cmd. 3797.

138 Susan Pedersen, The Guardians: The League of Nations and the Crisis of Empire 262–86 (2015).

139 Said to Humphrys, June 30, 1930, FO 371/14508 [E4557/41/93].

140 Chancery, British Embassy Baghdad, to FO Eastern Department, Dec. 13, 1934, FO 371/17858 [E7692/190/93].

141 Minute Nicoll, June 5, 1934, FO 371/17858 [E3214/190/93]. See also minute [illegible], June 13, 1934, FO 371/17858 [E3214/190/93] (“I confess to feeling some doubt about the propriety of not publishing these notes. They may not be of first class importance + some of them may merely extend a previous arrangement but they appear to constitute international obligations.”).

142 Minute Fitzmaurice, Sept. 4, 1934, FO 371/17858 [E3214/190/93].

143 Id.

144 Minute Troutbeck, Oct. 19, 1936, FO 371/19760 [A8272/59/2].

145 Minute [Collier], Oct. 31, 1934, FO 371/18294 [N5961/1148/30].

146 Brown [Board of Trade] to Cadogan, Oct. 28, 1936, FO 371/19760 [A8582/59/2].

147 Minute [Grey?], Oct. 30, 1934, FO 371/18294 [N5961/1148/30].

148 Most notoriously, the Molotov–Ribbentrop “Treaty of Non-Aggression” of Aug. 23, 1939, accompanied by a secret additional protocol defining respective “spheres of influence” that carved through Polish territory and the Baltic states. Nazi-Soviet Relations, 1939–1941: Documents from the Archives of the German Foreign Office 76–78 (Raymond Sontag & James Beddie eds., 1948).

149 The published Anglo-Polish Agreement for Mutual Assistance of August 1939, for example, provided that each party would at once give all the assistance in its power to the other party should it be subject to aggression or threats to independence by a “European power.” A secret protocol, said to constitute an integral part of the Agreement, specified that “European power” meant Germany. It was publicly acknowledged in 1939 that German aggression was the main source of concern (HC Deb, supra note 45, at vol. 352, col. 1082 (Butler, Oct. 19, 1939)), but the protocol was not published until 1945: Cmd. 6616 (1945).

150 See, e.g., correspondence about various agreements in MAE 118 CPC 216 [Z760/5–6] (Yugoslavia); MAE 110 CPC 225–6 [Z586/5–6] (Romania).

151 See 1 Documents Diplomatiques Français 1921, at 215–19, 235–36 (2004).

152 It was later acknowledged that the structure of the Franco-Polish accord was artificial: “[A]lthough it was signed only by military delegates of the two countries, [the military accord] was not only a [c]onvention of military execution [convention d'exécution militaire]; it comprised a series of articles of a genuinely political character as they determined the cases in which the cooperation of the two countries must be effected.” Note pour le Président du Conseil, Jan. 29, 1922, MAE CPC 132 [Z698/12&13].

153 Minus an article providing that it would only come into force on the execution of commercial accords then under negotiation. This article was withheld out of fear that Polish critics of the arrangements might read the article in question as confirmation that France's pursuit of economic interests had dominated the whole relationship. Panafieu to MAE, Mar. 5, 1921, MAE CPC 132 [Z698/12&13].

154 Note pour le Président du Conseil, supra note 152.

155 Note, Feb. 14, 1923, MAE CPC 133 [Z698/12&13, no. 133].

156 See 2 LNTS 128.

157 Details in Donaldson, supra note 23, 369–73.

158 See, e.g., Note pour le Président du Conseil, supra note 152.

159 E.g., the French speak of the need for clauses of the Franco-Polish military accord to be executed “strictly and without delay,” and the Poles, upset about French delays in granting military credits, insist that the engagement to supply the credits had been entered into by the French without qualification or reserve and must be kept. Président du Conseil to Foch, Aug. 31, 1921, MAE CPC 132 [Z 698/12&13]; Note pour le Président du Conseil, supra note 152. See also Foch to Président du Conseil, July 1, 1921; Président du Conseil to Foch, Aug. 31, 1921; Ministre plénipotentiaire of Poland in Paris to the Ministre des Affaires Étrangères (France), Mar. 24, 1922 (original erroneously marked 1921); Président du Conseil to Ministres de la Guerre and others, Mar. 31, 1922; Note, Négociations Franco-Polonaises, Application de la Convention Militaire, Apr. 26, 1922; all MAE CPC 132 [Z 698/12&13] (concerning Poland's obligations to reorganize its army and extend military service, and France's obligations to extend the credits); Note sur les échanges de vues et les accords de la Pologne avec les états de la Petite Entente de l'Entente baltique, May 28, 1923 (concerning Poland's obligations to inform France of treaties negotiated with other states); Warsaw to MAE, Aug. 14, 1924 (concerning France's obligations to concert with Poland); both MAE CPC 134 [Z 698/12&13].

160 See, e.g., État des traités et des accords d'alliance, May 1, 1928; Notes sur les accords politiques franco-polonais, Nov. 24, 1937; Obligations contractuelles de la France et de la Tchécoslovaquie, Nov. 27, 1937; MAE CPC 479 [Y61/4].

161 Projet de texte pour le discours du Ministre, Jan. 18, 1939, MAE CPC 479 [Y61/4].

162 See, e.g., Memorandum: Political Treaties, Agreements, Alliances and Relations at present in force in Central and South-East Europe affecting the Question of Security, Jan. 20, 1925, FO 371/10698 [C982/982/62].

163 Note pour le Président du Conseil, supra note 152.

164 Note pour le Président du Conseil, June 24, 1922, MAE CPC 133 [Z698/12&13].

165 Visite du Ministre de Pologne à M. de Peretti, Feb. 1, 1922, MAE CPC 132 [Z698/12&13].

166 E.g., publication in a German newspaper of what purported to be the text of a secret Franco-Czech military treaty, but was actually a fake, turned out to be a gift for the French and the Czech governments. They could happily issue démentis, and Benes declared before the Czech Foreign Affairs Committee that he had not, and would not in the future, sign any “secret treaties.” See Ministre de France, Prague, to Président du Conseil, Mar. 22, 1924, MAE CPC 42 [Z864/12]. The démenti was amplified in the Francophone press. See extracts in dispatches in MAE CPC 42 [Z864/12].

167 In the first full year of the League's operation (1921), 128 treaties were submitted for registration. The figure grew rapidly in the mid-1920s to 350 (1926), before tapering in the late 1920s. These figures are from Hudson, Manley O., The Registration of Treaties , 24 AJIL 752, 753 (1930)Google Scholar. This certainly does not represent the totality of treaties made by League members, or even published in national collections. Raw figures on the number of treaties submitted are a very inadequate proxy for national compliance, but in the period 1920–1930 the British Empire submitted the most treaties, followed by Germany, then Scandinavian and some European countries (the United States was not submitting treaties for registration at this stage: see above text at note 121). France submitted considerably fewer treaties than the United Kingdom. There were relatively strong submission figures from some of the new states of eastern Europe, perhaps reflecting the close engagement of some of these states and their leaders with the League, but comparatively few submissions from Latin America; thirteen submissions each from China and Siam; and four from Persia. Id. at 754–55.

168 House of Lords Debates, 5th Ser., vol. 86, cols. 793–94 (Feb. 22, 1933) [hereinafter HL Deb].

169 Ras Tafari to Bentinck, Jan. 26, 1926, enclosure 1 in Bentinck dispatch, Jan. 28, 1926, FO 371/11561 [J497/19/1].

170 See, e.g., correspondence in FO 371/11560 [J363/19/1, J447/19/1]; FO 371/11561 [J458/19/1]; FO 371/11562 [J847/19/1].

171 See, e.g., Graham to Chamberlain, May 7, 1926, FO 371/ [J1137/19/1].

172 Correspondence in FO 371/11562 [J1207/19/1].

173 HC Deb, supra note 45, at vol. 197, col. 1614 (July 5, 1926); see also vol. 197, col. 1120 (June 30, 1926).

174 Although Ethiopia could, in theory, have argued that they were contrary to the undertaking given by members under Article 20 of the Covenant that “they will not hereafter enter into any engagements inconsistent with the terms thereof.”

175 See correspondence published in 7 LNOJ 1524–25 (1926).

176 See, e.g., Rubenson, Sven, The Protectorate Paragraph of the Wichalē Treaty , 5 J. Afr. Hist. 243 (1964)Google Scholar; Rubenson, Sven, Professor Giglio, Antonelli and Article XVII of the Treaty of Wichalē , 7 J. Afr. Hist. 445 (1966)Google Scholar (on the disputed clause in an 1889 treaty, used by Italy to claim a protectorate over Ethiopia).

177 3 Documents of the United Nations Conference on International Organization, San Francisco, 1945, at 149, 222–223, 327, 342, 389, 526, 540, 560 (1945).

178 American officials involved in the work of Sub-Committee IV/2/A: Other Legal Problems, the body tasked with drafting what would become Article 102, included Charles Fahy, Philip Jessup, and Henry Reiff (U.S. State Department), together with Manley Hudson (present in Sub-Committee IV/2/A as an informal observer, but whose views likely carried great weight because he had been so involved in U.S. policy on treaty registration).

179 ISO 165, Nov. 22, 1944, 4, 5, PCJ I:166. [“PCJ” in archival references denotes Philip C. Jessup papers, Library of Congress (Washington, DC)].

180 Id. at 7.

181 Views of [Green Haywood Hackworth], May 10, 1945, PCJ I:166.

182 US IV/2/A Doc. 5, May 18, 1945, 1, PCJ I:176. For text of Article 18, see supra note 2.

183 US IV/2/A Doc. 6, May 19, 1945, 2–3, PCJ I:176.

184 Id. at 3 and Corrigendum; US IV/2/A Doc. 7, May 21, 1945, PCJ I:176. Article 102 in fact gave rise to a host of difficulties. On a literal reading, a non-party to an unregistered treaty could invoke the treaty before the International Court of Justice (ICJ), whereas a party could not; and a party could invoke an unregistered treaty before, say, an arbitral tribunal or domestic court, but not the ICJ. See, e.g., Martens, Ernst, Article 102 , in 2 The Charter of the United Nations: A Commentary 2089, 2105–06 (Simma, Bruno, Khan, Daniel-Erasmus, Nolte, Georg, Paulus, Andreas & Wessendorf, Nikolai eds., 3d ed. 2012)Google Scholar; Brandon, Michael, The Validity of Non-registered Treaties , 29 Brit. Y.B. Int'l L. 186, 198–99 (1952)Google Scholar.

185 US IV/2/A Doc. 7, supra note 184, at 1. Jessup thought there “seem[ed] to be no satisfactory explanation” of why the PCIJ had ignored Article 18. Jessup to Fahy, May 13, 1945, 2, PCJ I:166.

186 See, e.g., Geck, Wilhelm Karl, Treaties, Registration and Publication , in 7 Encyclopedia of Public International Law 490, 494 (Bernhardt, Rudolf ed., 1984)Google Scholar (suggesting that “the watering down of the sanction” relative to what Article 18 had provided might have “contributed to a weakening of the binding power of the obligation to register”).

187 Article 14, the successor to the Covenant provision concerning the Assembly's power to advise reconsideration of treaties (see supra text at note 32), was given a more general ambit. Article 103 preserved the preeminence of Charter obligations over inconsistent treaty obligations. However, as with Article 20 of the Covenant (see supra text immediately following note 32), doubts about the nature and scope of the registration obligation hindered the sort of comprehensive oversight of treaty obligations needed to ensure that Charter obligations did in fact prevail over conflicting commitments.

188 Note the haphazard terminology in Charter Articles 43, 57, 62(3), 102, 103, and 105(3); and ICJ Statute Articles 34(3), 35, 36, 37, 38(1)(a), and 63. For scholarly discussion, see, e.g., Brandon, Michael, Analysis of the Terms “Treaty” and “International Agreement” for Purposes of Registration Under Article 102 of the United Nations Charter , 47 AJIL 49, 55–56 (1953)Google Scholar; Fawcett, J. E. S., The Legal Character of International Agreements , 30 Brit. Y.B. Int'l L. 381 (1953)Google Scholar. Suggested exclusions from the term “treaty” begged more questions. Myers, Denys P., The Names and Scope of Treaties , 51 AJIL 574, 598, 600 (1957)Google Scholar.

189 US IV/2/A Doc. 7, supra note 184, at 3; Doc. 8, May 24, 1945, 2; PCIJ I:176.

190 Edward R. Stettinius, Charter of the United Nations: Report to the President on the Results of the San Francisco Conference 154 (June 26, 1945); see also Foreign Office, A Commentary on the Charter of the United Nations, Cmd. 6666, para. 74 (1945).

191 Minute Beckett, Nov. 7, 1946, FO 372/4847 [T21331/4751/581].

192 GA Res. 97(I) (Dec. 14, 1946), as modified by GA Res. 364 B (IV) (Dec. 1, 1949); 482 (V) (Dec. 12, 1950); 33/141 A (Dec. 18, 1978).

193 See discussion in Broches, Aron & Boskey, Shirley, Theory and Practice of Treaty Registration with Particular Reference to Agreements of the International Bank , in Selected Essays: World Bank, ICSID, and Other Subjects of Public and Private International Law 99, 107 (Broches, Aron ed., 1995)Google Scholar.

194 5 Repertory of Practice of United Nations Organs [1945–1954], at 286–87, available at http://legal.un.org/repertory/art102.shtml.

195 See A/C.6/SR.54 (meeting of Oct. 29, 1947). In subsequent years Russian delegates participated in discussions in the Sixth Committee in a manner which the FO believed was a tacit admission of obligation to register. Southern Department to British Legation, Budapest, Dec. 19, 1950, FO 371/87810 [RH10338/11 1950].

196 See, e.g., Heathcote-Smith, Mar. 10, 1947, FO 372/6099 [T4383/383/381].

197 Minute [Hildyard?], Jan. 9, 1949, FO 371/77445 [N11004/1138/30].

198 Southern Department to British Legation, Budapest, supra note 195.

199 Copy in FO 371/57287 [U3903/1730/70]; referred to but not reproduced in 1 Documents on British Policy Overseas (Series I) 73, n. 2 (Rohan Butler & M. E. Pelly eds., 1984).

200 See, e.g., correspondence in FO 371/47897 [N3670/409/38].

201 For opposing cases, see, e.g., McClure, supra note 120; Borchard, Edwin M., American Government and Politics: Treaties and Executive Agreements , 40 Am. Pol. Sci. Rev. 729 (1946)Google Scholar. “Executive agreements,” even those grounded in the constitutional authority of the president alone, had now been held to have the same supremacy over state law as Article II treaties. United States v. Pink, 315 U.S. 203 (1942); United States v. Belmont, 301 U.S. 324 (1937).

202 See supra text at notes 119–20.

203 For a detailed account, see, e.g., Ackerman and Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev. 799, 866–96 (with reservations as to the notion of a “constitutional moment”). On increasing recourse to the executive agreement, see Glen S. Krutz & Jeffrey S. Peake, Treaty Politics and the Rise of Executive Agreements 37–46 (2009).

204 Department of State Circular No. 175, para. 3 (Dec. 13, 1955), reproduced in 50 AJIL 784 (1956). With some variation of expression, this categorization of the constitutional bases for executive agreements remains in place today. Compare Restatement (Second) of Foreign Relations Law §§119–21 (1965); Restatement (Third) of Foreign Relations Law §303 (1987); 11 Foreign Affairs Manual 723.2-2(A)–(C) (rev. 2006), available at https://fam.state.gov/default.aspx#.

205 Evans and Anderson, The Presentation of Treaties to Parliament: The Ponsonby Rule, Mar. 31, 1969, FCO 53/81.

206 Minute Beckett, Nov. 30, 1948, FO 372/6727 [T24653/24653/381].

207 HL Deb, supra note 168, at vol. 180, col. 1285 (Swinton, Mar. 11, 1953).

208 See response to a parliamentary question in 1945, asking for an assurance that no agreement will be concluded until it has been “confirmed” by Parliament. While initial proposals for a response mentioned that the government must retain a discretion not to publish some agreements, the final answer turned on the Ponsonby rule. Minute [Robb?], Nov. 2, 1945, and final response, FO 370/1194 [L3470/3470/402].

209 Decree No. 53–192, Mar. 14, 1953, [1953] Journal Officiel de la République Française: Lois 2436, Art. 3, available at https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000491782&categorieLien=id. An arrêté of June 16, 1955 required the Service des Archives to maintain a record of all international engagements, of whatever nature. France resumed publication of a regular treaty series in 1958, with the Recueil des traités et accords de la France, but this seems primarily to have reproduced texts already published in the Journal Officiel. A separate project to publish all bilateral treaties and accords made since 1567 and still in force, published or unpublished, was pursued in the 1970s, beginning with 1 Recueil général des traités de la France. 1er Série. Accords bilateraux publiés et non publiés au Journal Officiel de la République Française (1564–1957) (Roger Pinto & Henry Rollet eds., 1979).

210 Constitution of Oct. 4, 1958, available at http://www.assemblee-nationale.fr/connaissance/constitution.asp.

211 In practice, many “traités” (in the narrow sense—i.e., subject to ratification or analogous process) are in fact not ratified by the president, but “approved” by the government. Paul Reuter & Philippe Cahier, Introduction au droit des traités 78, n. 97 (3d ed. 1995).

212 New systems of information classification, extended and generalized beyond the military context, do not seem to have been reconciled conceptually with requirements for treaty publication. Rather, texts arrived in foreign ministries subject to classification (if at all), and foreign ministries had to either find ways to justify their secrecy within the norms pertaining to treaty publication, or press for revision of the classification.

213 A highly significant, if unique, instance was the Anglo-American “Communication Intelligence Agreement” of March 5, 1946, signed by representatives of the U.S. State-Army-Navy Communications Intelligence Board, and the London Signal Intelligence Board, each of which was said to represent multiple departments and agencies. This Agreement, and its 1955/56 successor, consolidated wartime intelligence and cryptanalysis cooperation, and laid the foundations of the “Five Eyes” program (documents available at https://www.nsa.gov/news-features/declassified-documents/ukusa/index.shtml).

214 See supra text at note 81.

215 Efforts in the 1950s to secure submission of original agreements to the Archives Service seem to have had only mixed success. De Gaulle's discovery in the late 1950s that 1954 agreements between France and the Federal Republic of Germany had not been published in France helped “empty the drawers.” La Publication des engagements internationaux de la France , 8 Annuaire français de droit international 888, 899 (1962)Google Scholar. In 1955 a Bureau des Traités was created within the Ministry, and the constitutional reform of 1958 prompted more regular procedures, but reminders suggest ongoing difficulties. See, e.g., correspondence in MAE Direction des Archives 289 [1720–1970. Dossier général].

216 Foster, Registration of Treaties Under Article 102 of the UN Charter, May 9, 1947, NARA RG 59, 1945–49 CDF, Box 2063 [501.AJ/Treaties/6-1947] [“NARA RG 59 … CDF” in archival references denotes National Archives and Records Administration, Reading Group 59, Department of State Central Decimal File (held in Washington, DC)].

217 Fahy, circular Registration of Treaties with the United Nations, June 19, 1947, NARA RG 59, 1945–49 CDF, Box 2063 [501.AJ/Treaties/6-1947].

218 Registration of Defense and Base Rights Agreements with the UN, Dec. 1, 1951, NARA RG 59, 1950–54 CDF, Box 1263.

219 Id.

220 US-UK agreements regarding the use of bases in the United Kingdom, however, were typically not framed as treaties. See Simon Duke, US Defence Bases in the United Kingdom: A Matter for Joint Decision? (1987) (giving history of negotiations).

221 In view of the possible propaganda use which might be made of it by the USSR. Note pour le Président Schuman, Mar. 17, 1952, MAE NUOI 596 [S50.5.2] [“MAE NUOI” in archival references denotes Archives diplomatiques (France), “Nations Unies et Organisations Internationales” series (held at La Courneuve)].

222 Questions and Answers” prepared in connection with hearings over the Bricker Amendment, NARA RG59 Department of State Lot Files, Lot 79 D 273, Box 5 (emphasis added).

223 Dunbar to [various government departments], July 23, 1946, FO 372/4847 [T10754/4751/381]; see also minute Beckett, Mar. 1, 1947, FO 372/6099 [T383/383/381].

224 Agreement on the Availability for Defence Purposes of the British Indian Ocean Territory, 603 UNTS 273 (subsequently amended).

225 The secret exchange, which came to light in the 1970s, to heavy criticism, is reproduced in Peter H. Sand, United States and Britain in Diego Garcia: The Future of a Controversial Base 8 (2009).

226 As reflected in, for example, circular Griffiths to colonial governors, Registration of International Agreements with the United Nations, May 2, 1950, FO 372/6968 [TF12/17 1950].

227 See, e.g., correspondence in FO 372/6717 [T12897/1677/381].

228 For FO criticism of creative use in the trade context: minute Cox, June 28, 1948, FO 371/68917 [UE5746/78/53].

229 On Cold War-era challenges to UN admissions on the basis of lack of independence, see Fastenrath, Ulrich, Article 4 , in 1 The Charter of the United Nations: A Commentary 341, 344–45 (Simma, Bruno, Khan, Daniel-Erasmus, Nolte, Georg, Paulus, Andreas & Wessendorf, Nikolai eds., 3d ed. 2012)Google Scholar.

230 This echoed earlier, short-term secret agreements made pre-independence, and used for operations against the “Union des Populations du Cameroun,” a dynamic and transnationally active resistance movement which sought the unification of French and British Cameroon before independence. See Meredith Terretta, Nation of Outlaws, State of Violence: Nationalism, Grassfields Tradition, and State Building in Cameroon 2–11 (2014).

231 Note pour le Service du Protocole, Dec. 22, 1960, both in MAE Afrique-Levant 1953–1959/Cameroun/10 [Accords franco-camerounais 1960–62] [hereinafter MAE Cameroun 10]. The “accord de défense” was sometimes characterized as a secret annex to the Treaty of Cooperation, and sometimes as freestanding. The final text is now available at http://www.diplomatie.gouv.fr/traites/affichetraite.do?accord=TRA19600199.

232 Benart to MAE, Nov. 16, 1961, in MAE Cameroun 10, supra note 231.

233 The French understanding was that the secret defense accord could be ratified without Parliamentary approval under the Cameroonian Constitution because it was not a “treaty” within the meaning of the constitutional text, although internal French correspondence refers to an article which does not seem to bear directly on the question. Note a/s. Instruments de ratification des accords franco-camerounais du 13 novembre 1960, Jan. 12, 1961, MAE Cameroun 10, supra note 231.

234 This and subsequent texts were treated as classified. Tibault Stéphène Possio, Les Évolutions récentes de la coopération militaire française en Afrique 150, 429–433 (2007) (on subsequent texts).

235 Reproduction of French original and English translation in Troen, S. Ilan, The Protocol of Sèvres: British/French/Israeli Collusion Against Egypt, 1956 , 1 Isr. Stud. 122, 131 (1996)Google Scholar. The originals were headed “Protocole” and “Protocol” respectively, and “Sèvres,” the location of its signature, was added to many subsequent references.

236 The British Lord Chancellor had advised that the intervention was a lawful defense of British nationals and property (without commenting on the significance of the deception involved in its arrangement), but the attorney-general and FO legal advisers, not consulted in advance about the plan reflected in the Protocol, disagreed after the fact. On the exchange of legal views as the situation developed, see Marston, Geoffrey, Armed Intervention in the 1956 Suez Canal Crisis: The Legal Advice Tendered to the British Government , 37 Int'l & Comp. L. Q. 773 (1988)Google Scholar.

237 See also a further Franco-Israeli agreement regarding air defenses in Troen, supra note 235, at 135.

238 The later progressive development of the law in VCLT, Article 53, concerning a treaty in conflict with a peremptory norm, such as the prohibition of aggression, offers a different possibility for some such cases: there may have been a treaty, but one that was void ab initio. However, this position remains controversial, and may still not have attained customary status.

239 Christian Pineau, 1956 Suez 152–53 (1976).

240 Keith Kyle, Suez 326, 330 (1991); Shlaim, Avi, The Protocol of Sèvres, 1956: Anatomy of a War Plot , 73 Int'l Aff. 509, 522, 529 (1997)Google Scholar. That said, a desire for a formal document is not in itself a belief that the document was legally binding.

241 He observed later that it was an exaggeration to call the text a “treaty,” and that it was rather a “temporary agreement relating to a specific action” [“accord temporaire portant sur une action précise”], following completion of which the engagements have no further purpose. However, this observation does not exclude a supposition that he believed it to be legally binding as far as it went. Pineau, supra note 239, at 149.

242 Mollet to Ben-Gurion, reproduced from Ben-Gurion Archives in Troen, supra note 235, at 136.

243 Requesting, unsuccessfully, that the French destroy their copy, and having all copies in British hands destroyed (Meetings at Sèvres 22–25 October 1956, Narrative, Donald Logan (24 October 1986), FCO 12/183; Meeting with Sir Donald Logan on Suez Records, 15 April 1986, FCO 12/178). Eden's letter following the Protocol signing confirmed only that the British would “take the action described” in the Sèvres conversations, making no reference to the Protocol text (Eden to Mollet, as reproduced in Troen, supra note 235, at 137). The earlier written “declaration” by Eden to which reference is made in this letter has not been traced in British archives. Jonathan Pearson, Sir Anthony Eden and the Suez Crisis: Reluctant Gamble 150–151, 222, n. 43 (2003).

244 See, e.g., Jean d'Aspremont, Formalism Versus Flexibility in the Law of Treaties, in Research Handbook on the Law of Treaties 257, 261–74 (Christian J. Tams, Antonios Tzanakopoulos & Andreas Zimmermann eds., 2014). Lingering questions about the outer bounds of “treaty” are evident in the scholarship. See, e.g., Michel Virally, Sur la notion d'accord, in Festschrift für Rudolf Bindschedler 159 (Rudolf Bindschedler, Emanuel Diez, Jörg Paul Müller, Heinrich Reimann & Luzius Wildhaber eds., 1980); Widdows, Kelvin, What Is an Agreement in International Law? , 50 Brit. Y.B. Int'l L. 117 (1979)Google Scholar; Eisemann, Pierre Michel, Le Gentleman's agreement comme source du droit international , 106 Journal du droit international 326 (1979)Google Scholar.

245 VCLT, supra note 3, Art. 46.

246 The phrase is from Baxter, R. R., International Law in “Her Infinite Variety,” 29 Int'l & Comp. L. Q. 549, 556 (1980)Google Scholar.

247 See, e.g., negotiations with Spain 1969–70 for U.S. base rights, complicated by suspicion and misunderstanding of prior transactions. Hearings before the Subcommittee on United States Security Agreements and Commitments Abroad of the Committee on Foreign Relations, United States Senate, 91 Cong., Part 11 (Mar. 11, Apr. 14, 1969; July 17, 1970) 2309–2311, 2322, 2388, 2342 (Evidence of Elliot Richardson) (1970).

248 Pub. L. 92-403, §1, 86 Stat. 619 (Aug. 22, 1972), later reflected in 1 U.S.C. §112b (1982 comp.). This was subject to an agreed exclusion for “trivia.”

249 An interview in June 1974 with a senior staff member of the House Foreign Affairs Committee indicated that 5–10% of all “international commitments” (primarily those dealing with military policy) were classified. Loch K. Johnson, The Making of International Agreements. Congress Confronts the Executive 28, n. 11 (1984).

250 Abshire to Weinberger, Aug. 18, 1972, NARA RG 59, Box 1959 [POL 4].

251 See, e.g., Basdevant, supra note 21, at 624–25; Kraus, Herbert, Système et fonctions des traités internationaux , 50 R.C.A.D.I. 311, 328–29, 352–54, 368 (1934)Google Scholar; Jones, J. Mervyn, International Agreements Other Than “Inter-State Treaties” — Modern Developments , 21 Brit. Y.B. Int'l L. 111 (1944)Google Scholar; Weinstein, J. L., Exchanges of Notes , 29 Brit. Y.B. Int'l L. 205, 205–06, 215 (1952)Google Scholar; Philippe Gautier, Essai sur la définition des traités entre etats. La pratique de la Belgique aux confins du droit des traités 228–50 (1993). On the constitutional basis of “agency level agreements” in the United States, see Kuchenbecker, David J., Agency-Level Executive Agreements: A New Era in U.S. Treaty Practice , 18 Colum. J. Transnat'l L. 1, 21–31 (1979)Google Scholar. Although the UK position accepted that departments could bind the state, it tended to see these agreements as limited to transactions of a private law character (which would not be treaties in any event). Arnold Duncan McNair, The Law of Treaties 20–21 (1961).

252 Comptroller-General of the United States, U.S. Agreements with the Republic of Korea, ID-76-20 (Feb. 20, 1976); Hearings before the Subcommittee on International Security and Scientific Affairs of the Committee on International Relations, House of Representatives, 94 Cong. (June 22, 23, 29, 30; July 20, 22, 1976) 237–240 (responses by the Hon. Monroe Leigh) (1976).

253 Were intended to be legally binding and governed by international law; were not trivial; were between two or more parties; contained obligations of some degree of specificity; and were of a form to indicate an intention to be legally bound. Memo Monroe Leigh to Key Department Personnel, Mar. 12, 1976, reproduced in id., 240–43.

254 Pub. L. 95-45, §5, 91 Stat. 224 (June 15, 1977); Pub. L. 95-426, Title VII, §708, 92 Stat. 993 (Oct. 7, 1978); reflected in 1 U.S.C. §112b (1982 comp.).

255 46 FR 35918, July 13, 1981, as amended; see 22 C.F.R. §181.1(b).

256 The circulars exempted “administrative arrangements which do not engage the State and bind only the administrations concerned,” though it is unclear how administrative departments alone could have the capacity to enter into binding arrangements. Burdeau, Geneviève, Les Engagements internationaux de la France et les exigences de l'Etat de droit , 32 Annuaire français de droit international 837, 843 (1986)Google Scholar.

257 On the British preference for memoranda of understanding (MOUs), see infra at note 261 and following text.

258 Eisemann, supra note 244, 327–31.

259 Final Act of the Conference for Security and Co-operation in Europe, Aug. 1, 1975, 14 ILM 1292 (1975).

260 An early account of MOUs is Aust, Anthony, The Theory and Practice of Informal International Instruments , 35 Int'l & Comp. L. Q. 787 (1986)Google Scholar.

261 For example, for the United States, demands of domestic statutory authorizations and appropriation processes, protection of private rights, and some additional prudential preference seems to have meant a desire to cast defense arrangements in legally binding terms where the United Kingdom was content to have them non-binding. McNeill, John H., International Agreements: Recent U.S.–UK Practice Concerning the Memorandum of Understanding , 88 AJIL 821, 823 (1994)Google Scholar. France, too, has generally opposed the notion of engagements entered into by governments and yet not legally binding. Secrétariat Général du Gouvernement & Conseil d’État, Guide pour l’élaboration des textes législatifs et réglementaires 429–30 (version of Sept. 25, 2015), available at http://www.guide-legistique.fr/guide.pdf.

262 United States—United Kingdom Arbitration Concerning Heathrow Airport User Charges (1992–1994), 24 U.N.R.I.A.A. 1, 131.

263 McNeill, supra note 261, at 822; Plouffe, Jean-Pierre, Les Arrangements internationaux des agences et ministères du Canada , 21 Can. Y.B. Int'l L. 176, 186–90 (1983)Google Scholar.

264 In the defense area, divergences were reconciled to some extent by the drafting of legally binding “chapeau agreements” in the 1990s, which would overlay non-binding MOUs (e.g., Defense Cooperation Arrangements Agreement, May 27, 1993, 1792 UNTS 145, 147). See Aust, supra note 7, at 39. The 2016 edition of “Treaties in Force” carried a statement that “in order to avoid confusion as to their legal character, this edition omits a number of non-binding instruments regarding defense cooperation that have been included in prior editions,” but still lists under the “Defense” category an exchange of letters relating to the safeguarding of classified information (Apr. 4, 1961). See U.S. Department of State, Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force on January 1, 2016, at i, 459 (2016), available at https://www.state.gov/documents/organization/267489.pdf. This exchange of letters is considered not legally binding by the UK government (communication to author from Treaty Section, Legal Directorate, FCO, June 23, 2017).

265 Repertory of Practice of United Nations Organs, Supplement No. 9, at 7, available at http://legal.un.org/repertory/art102.shtml. As part of work on “Strengthening and Coordinating United Nations Rule of Law Activities,” the secretary-general was asked by the General Assembly in 2016 to review the regulations giving effect to Article 102. He recommended, inter alia, that the Sixth Committee consider revisions, including a review of the substantive conditions for registration (but did not propose any particular approach). See Strengthening and Coordinating United Nations Rule of Law Activities: Report of the Secretary-General, para. 25, A/71/169 (July 20, 2016). The Sixth Committee has proposed to take note of the recommendations. General Assembly, Sixth Committee, Draft Resolution: The Rule of Law at the National and International Levels, para. 8(b), A/C.6/71/L.27 (Nov. 7, 2016).

266 Based on figures given in the Supplements to the Repertory of Practice (available at http://legal.un.org/repertory/art102.shtml), the number of treaties submitted for registration by states has climbed from roughly 5,000 in 1960–69, to roughly 8,000 in 2000–09, but this is not remotely equal to the total number of treaties and international agreements made. It seems likely that much of the non-compliance is due to bureaucratic incapacity in state ministries, but in some cases states appear to be operating on a principle of registering only, or mostly, treaties they consider to be of particular importance. In many cases treaties are registered after significant delay, indicating perhaps declassification or correction of oversights, or anticipation that the government may wish to invoke a treaty before a UN organ. The overall rate of registration, judging very roughly from the experience of compilers of Rohn's World Treaty Index, is probably about 50%. Pearson, Glenda J., Rohn's World Treaty Index: Its Past and Future , 29 Int'l J. Legal Info. 543, 546–47 (2001)Google Scholar.

267 In several cases (Corfu Channel, Asylum, Minquiers and Ecrehos, Monetary Gold, and Anglo-Iranian Oil) the ICJ referred to unregistered treaties without mentioning Article 102 (although the texts concerned had been made public in some form). See Broches and Boskey, supra note 193, at 130–144, 152–153. In Case Concerning Maritime Delimitation and Territorial Questions Between Qatar and Bahrain, Jurisdiction and Admissibility, 1994 ICJ Rep. 112, the jurisdiction of the ICJ was said by Qatar to rest on a 1987 exchange of letters, which both parties considered constituted “an international agreement with binding force in their mutual relations,” and minutes of a meeting in 1990, which Bahrain contended were merely a record of negotiations, and Qatar contended rose to the level of a treaty. The ICJ held that non-registration or late registration did not warrant an inference that there was no intention to create legal relations, and did not refer to the fact that the 1987 exchange had not been registered. However, India is now seeking to argue that non-registration of a purported treaty precludes its invocation before the ICJ. See Jadhav Case (India v. Pak.), Verbatim Record of Oral Argument, paras. 16, 66(b) (Int'l. Ct. Justice May 15, 2017), available at http://www.icj-cij.org/files/case-related/168/168-20170515-ORA-01-00-BI.pdf.

268 Since 1994, the secretary of state has been permitted to determine that publication in the TIAS of certain categories of agreement (other than Article II treaties) is not required, if the public interest in such agreements is insufficient to justify their publication. In all instances except national security, the secretary of state must provide copies of the agreements on request under 1 U.S.C. §112a.

269 11 Foreign Affairs Manual 725.2 (rev. 2006), available at https://fam.state.gov/default.aspx#.

270 See supra note 209; current version of decree available at https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000491782&dateTexte=20170809. The decree was amended by Decree No 86-707 of Apr. 11, 1986 to incorporate additional requirements regarding publication of reservations, interpretive declarations and denunciations. Burdeau, supra note 256, at 852–55.

271 Circulaire du 30 mai 1997 relative à l’élaboration et à la conclusion des accords internationaux, [1997] Journal Officiel de la République Française 8415, available at https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000200416; see also MAE Protocole/Direction juridique/Direction des Archives, Accords et traités de la France de la négociation à la fin de validité 51 (June 2005) (on file with author).

272 Constitutional Reform and Governance Act 2010 (UK), s. 20. These requirements may be overridden on a minister's initiative, subject to the treaty being laid and published as soon as possible after ratification. Id., s. 22. They do not apply to a specific list of treaties, including some which require express approval of Parliament, and others of a more routine nature (e.g., double taxation conventions). Id., s. 23. Additional requirements apply to some EU treaties. EU (Amendment) Act 2008; EU Act 2011.

273 Communication to author from Treaty Section, Legal Directorate, FCO, July 16, 2015.

274 House of Commons Library, Constitutional Reform and Governance Bill, 24–25 (Research Paper 09/73, Oct. 6, 2009), available at http://researchbriefings.parliament.uk/ResearchBriefing/Summary/RP09-73.

275 On the ICJ's fluid approach to considerations such as textual indicia, circumstances of negotiation, domestic law concerning treaty-making powers, and the (subjective) intention of negotiators, see Chinkin, supra note 7. On indicia relevant to the determination of whether a given text is legally binding, see Robert Kolb, The Law of Treaties: An Introduction 19–20 (2016).

276 FCO, Legal Directorate, Treaty Section, Treaties and Memoranda of Understanding (MOUs). Guidance on Practice and Procedures (2d ed., updated Mar. 2014), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/293976/Treaties_and_MoU_Guidance.pdf. Cf. State Department guidance of a similar nature, at http://www.state.gov/s/l/treaty/guidance.

277 In scholarly writing, a former FCO Deputy Legal Adviser has suggested that potential disagreements as to status might be headed off with a letter following the conclusion of the MOU. Anthony Aust, Alternatives to Treaty-Making: MOUs as Political Commitments, in The Oxford Guide to Treaties 46, 53 (Duncan B. Hollis ed., 2012).

278 These figures can be gleaned from searches by “Submittor” of the United Nations Treaty Series database, at https://treaties.un.org/pages/AdvanceSearch.aspx?tab=UNTS&clang=_en.

279 See survey in Duncan B. Hollis, A Comparative Approach to Treaty Law and Practice, in National Treaty Law and Practice 1, 23–38 (Duncan B. Hollis, Merrit R. Blakeslee & L. Benjamin Ederington eds., 2005).

280 See, e.g., Défense et sécurité nationale: Le Livre blanc 154 (2008), available at http://www.ladocumentationfrancaise.fr/rapports-publics/084000341.

281 For more on secret commitments, albeit not focusing on whether these are legally binding, see Deeks, supra note 5.

282 Michael Hirsh, Pakistan Signed Secret ‘Protocol’ Allowing Drones, Nat'l Journal (Oct. 23, 2013), at http://www.nationaljournal.com/white-house/pakistan-signed-secret-protocol-allowing-drones-20131023.

283 See, e.g., Affidavit of Józef Pinior (reporting being informed of a “document drawn up under the auspices of the government of Leszek Miller for the purpose of regulating the existence of the CIA prison in Poland … [containing] precise regulations concerning the foundation of the CIA secret prison … [and] propos[ing] a protocol for action in the event of a prisoner's death”); and evidence of Mr. JGS [adviser to Senator Marty] (making reference to “authorising agreements, which granted extraordinary protections and permissions to the CIA in its execution of detainee operations”), as quoted in Husayn (Abu Zubaydah) v. Poland, Judgment, paras. 297, 323 (Eur. Ct. H.R. July 24, 2014), at http://hudoc.echr.coe.int/eng#{“itemid”:[“001-146047”]}; see also Dick Marty, Secret Detentions and Illegal Transfers of Detainees Involving Council of Europe Member States: Second Report, at paras. 176–77, 211, 219–20 (June 11, 2007), available at https://assembly.coe.int/Documents/WorkingDocs/2007/edoc11302.htm (on arrangements with authorities in host states).

284 See supra at note 193; Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, Art. 81, UN Doc. A/CONF.129/15 (Mar. 21, 1986).

285 This shift intersects also with the rise of “informal law-making.” See, e.g., Informal International Lawmaking (Joost Pauwelyn, Ramses A. Wessel & Jan Wouters eds., 2012).

286 See, e.g., Department of State, Office of Inspector General, Memorandum Inspection Report. Review of Treaty Management Responsibilities in the Office of Treaty Affairs, Report No. ISP-C-05-01, at 2 (Dec. 2004), available at https://oig.state.gov/system/files/146709.pdf.

287 See, e.g., Mallard, supra note 9 (tracing uses of “transparency,” “ambiguity,” and “opacity” in treaty drafting and interpretation); Avner Cohen, Worst-Kept Secret: Israel's Bargain with the Bomb (2010).