Secrecy in international agreements

The recent P5+1 negotiations and the agreements reached so far have sparked much discussion and letter-writing. Part of this has to do with the obscurity of the negotiations and the simple reason that the few texts that have been made public are unlikely to present the totality of what the negotiations actually deal with apart from the nuclear issue. What is the deal with secrecy in international agreements?

The first reference in English to the Sykes-Picot agreement, by The Manchester Guardian 26 November 1917

The first reference in English to the Sykes-Picot agreement, by The Manchester Guardian 26 November 1917

Few things happen without a reason. Sometimes, what seems to be the apparent reason is only a piece, sometimes not even the right one, of a bigger picture. This includes international relations and the way in which they influence national, regional, and international developments. Part of what makes it difficult to dissect these developments, from the outside, is the use of secret agreements in international relations. Since they are secret, sometimes modestly referred to as “confidential”, such documents are released only after 20 years, 30 years, 50 years or whatever the confidentiality norm is in a country. Before World War I, the use of secret agreements or treaties, was quite common, typically dealing with alliances during war  and division of spheres of influence. The Treaty of Dover, the Sykes-Picot Agreement, the Molotov-Ribbentrop Pact, the Quadripartite Agreement and the Hoare-Laval Pact are only some of the many significant secret agreements of the past with major geopolitical impacts that have shaped our common history. While there can be good reasons for keeping certain agreements secret, secret international agreements are at the same time problematic from the perspective of sovereignty, democracy, rule of law, and an open society. They are also prohibited under international law.

Secret treaties under international law
At the Treaty of Versailles, marking an end to World War I, Woodrow Wilson proposed to include a prohibition against secret treaties by proposing that that all treaties should be made through the League of Nations. This proposal did not make it to the Treaty of Versailles, but was subsequently included in Article 18 of the Covenant of the League of Nations, which provided that “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.” The new rule had become, in other words, publicness of international agreements, through a requirement of registration. This did not, to nobody’s surprise, end the use of secret agreements in practice, but for the first time such agreements were prohibited on a formal level.
The UN Charter continues this policy in chapter XVI. Article 102 provides that:
1. Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.
2. No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations. “
Article 103 establishes the UN Charter as the superior law by stating that the obligations under the charter prevail in case of conflict the obligations under another international agreement.

The continued use of secret international agreements
Despite the clear prohibition under international law, secret international agreements continue in practice. For example, The United Kingdom- United States of America Agreement (UKUSA) between the UK, the US, Canada, Australia, New Zealand,and with several third parties subsequently joining, was entered into in 1946, but was not disclosed to the public until 2005 and its full text was not made public until 2010.
Because they are secret, contemporary secret agreements are hard to identify and such identifications often become mere speculations, giving rise to a variety of juicy conspiracy theories. However, sometimes such agreements are fairly easy to identify through a two-step process. The first is that there is knowledge that an agreement has been entered into. Second, the content of the agreement has not been made public. In such a case it is difficult to reach any other conclusion than that the agreement is secret.

A recent example of such a case is the P5+1 agreement with Iran. There is knowledge about an agreement, yet its content has not been made public. It has been referred to as the “Nuclear Agreement”, obviously dealing with some aspects of Iran’s nuclear programme, and indeed some of the obligations with respect to the nuclear issue have been referred to by the parties and an interim agreement has been published. Yet considering the geopolitical context of the agreement as well as the parties to it, it is highly probable that the P5+1 negotiations deals with broader issues than the nuclear issue. But we cannot know whether the terms of the agreement are in accordance with international law because the text has not been made public.

The context for the agreement- the location, the parties, the interests- bears resemblance to that of an agreement entered into almost a century ago, also that one a secret one. Whether or not the P5+1 agreement is the 21st century version of Sykes-Picot is impossible to know, because the content of the text, like that of Sykes-Picot (which became public in 1917, after the Bolsheviks came to power in Russia), has not been made public. Would it make a difference? That is the central problem of secret agreements. It is impossible to know since they are secret.

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2 thoughts on “Secrecy in international agreements

  1. What do you mean when you say that secret international agreements are “prohibited under international law.” Do you mean that such treaties are null and void – of no legal value? If so, how do you reconcile such a view with that of the ICJ in the Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), where it stated that “[n]on-registration or late registration, on the other hand [as per Article 102 of the UN Charter], does not have any consequence for the actual validity of the agreement, which remains no less binding upon the parties.”?

  2. Thank you for the comment, Sancho. You are pointing to, the way I see it, a (political/pragmatic) disharmony between theory and practice.

    Is an international agreement that is not registered in accordance with the UN Charter, Article 102, null and void? In other words, what is the legal consequence of a breach of named article?

    a) The text itself: What is clear from the text is that an un-signed treaty cannot be cited before the UN or the ICJ. In other words, while it might be a binding agreement on a bilateral/multilateral level, it is not so on an international level. You may say that such an unregistered treaty, according to the text itself, is “null and void” in ICJ/UN context.

    b) ICJ’s practice/interpretation: In its case law, the ICJ has never strictly adhered to (binding) formalities when it comes to treaty law. It has in its practice considered a wide range of forms of agreements, such as communiques, minutes from meetings etc, to be potentially able to constitute binding agreements. The ICJ has indeed given express statements that apparently seem to go in the opposite direction of Article 102. For example, in the Agean Sea Continental Shelf case, the ICJ stated that “On the question of form, the Court only needs to observe that it knows of no rule of international law which might preclude a joint communiqué (between Greece and Turkey, which had neither been signed nor initialed) from constituting an international agreement”, even though it concluded that it did not have the binding effect contended for.
    The ICJ continued this approach in the Qatar-Bahrain case, which you refer to. Here, the ICJ considered that the minutes of the meetings concluded in 1990 between Qatar and Bahrain could be constitutive of rights and obligations in international law. Formalities such as non-registration under article 102 could not, in the view of the majority opinion (see the dissenting opinion of judge Oda, arguing that the 1990 agreement could not constitute basis for ICJ’s jurisidiction) affect the binding nature of the document. The court thus apparently does not give article 102 much credit, and comes with statements that go in the opposite direction of the article. However, in the above cases, the court was concerned only with whether the agreements in question were sufficient to establish its jurisdiction, and not on its competence to pronounce upon any other implications of the documents. In other words, the court makes a distinction between its competence to address the larger issue on the one hand, and its competence to pronounce on the content of the agreements on the other hand. One could argue that such a distinction artificial, but that is a different question. Despite making this distinction, it is clear that ICJ’s statements on this matter do have a decisive impact on the practice of drawing up agreements that do not respect article 102.

    The short answer to your question is therefore that ICJ’s practice cannot be totally reconciled with the requirements of Article 102.

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