SECRET TREATIES IN INTERNATIONAL LAW AND THE FAITH OF STATES IN DECENTRALIZED ENFORCEMENT (original) (raw)

The modern law of treaties applies regardless of whether a treaty is publicized. The secrecy of an international agreement does not affect its legal force, nonpublicized agreements may be used in interpreting a publicized treaty, and mere failure to comply with domestic requirements concerning publicity does not invalidate the treaty or a state's consent to be bound by it. Under the UN Charter, UN members may not invoke an unregistered treaty or international agreement before a UN organ, but the rules on state responsibility are not concerned with the secrecy or publicity of primary obligations. Injured states may resort to countermeasures for breaches of secret treaty obligations and can suspend compliance with secret treaty obligations as a countermeasure against the responsible state. States may also seek to enforce obligations in secret treaties by bringing claims in international courts and tribunals outside the UN system—and these courts and tribunals have proliferated. Megan Donaldson's article, The Survival of the Secret Treaty: Publicity, Secrecy, and Legality in the International Order, is a welcome and thought-provoking contribution to the scholarship on secret treaties and the rule of law. 1 Secrecy has traditionally been perceived as a means by which states violate their international obligations concerning, for example , the self-determination of peoples and the prohibition of use of force. This understanding is primarily due to practice prior to and during the First World War. Modern scholarship, including Donaldson's contribution, challenges this perception. 2 Although it cannot be excluded that states may use secrecy as a means for pursuing violations of international law, states also conclude secret treaties that do not violate international law (or that will not violate international law, if implemented). The rationale behind secrecy may be that if such agreements are publicized, they may undermine peace. Additionally, governments may lack sufficient personnel, which may prevent them from publicizing treaties—either domestically or internationally—and such capacity limitations may even exist in larger bureaucracies. But it is important to recognize that some of the legal " techniques " that, according to Donaldson, have supported the conclusion of secret treaties in the previous century and in this century are perfectly available in the law of treaties. Further, decentralized measures for enforcing international law, such as the rules on countermeasures under the law on state responsibility, still operate even where the primary obligations breached are secret. This essay discusses how the law of treaties accommodates secrecy of treaties, and suggests that secret treaties may not only indicate the faith that states may have in pacta sunt servanda, as Donaldson argues, but also signal their