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DEFENSE of SECRET AGREEMENTS Ashley S. Deeks

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DEFENSE of SECRET AGREEMENTS Ashley S. Deeks A (QUALIFIED) DEFENSE OF SECRET AGREEMENTS Ashley S. Deeks INTRODUCTION............................................................................................ 714 I. THE SECRET COMMITMENT LANDSCAPE ............................................... 720 A. U.S. Treaties and Executive Agreements ....................................... 721 B. U.S. Political Arrangements ........................................................... 725 1. Secret Political Arrangements in U.S. Law ............................. 725 2. Potency of Political Arrangements........................................... 728 C. Secret Agreements in the Pre-Charter Era ..................................... 730 1. Key Historical Agreements and Their Critiques ...................... 730 a. Seminal Secret Treaties ....................................... 730 b. Critiques of the Treaties ...................................... 732 c. Treaty Registration Requirements....................... 735 2. Covenant of the League of Nations .......................................... 736 3. U.N. Charter ............................................................................. 737 4. Seeds of Non-compliance ........................................................ 737 a. Textual Challenges .............................................. 738 b. Practical Challenges ............................................ 739 II. DEFENDING SECRET COMMITMENTS IN THE CHARTER ERA .................. 740 A. Categories of Commitments ........................................................... 741 1. Intelligence Cooperation .......................................................... 741 2. Military Cooperation ................................................................ 744 3. Nuclear-Related Agreements ................................................... 746 4. Weapons-Related Commitments .............................................. 749 5. Economic Commitments .......................................................... 750 Associate Professor, University of Virginia Law School. Thanks to Gabriella Blum, Jack Goldsmith, Duncan Hollis, John Quigley, Alan Rozenshtein, Rich Schragger, Steve Slick, Paul Stephan, Robert Taylor, Pierre Verdier, and participants in presentations at Harvard Law School and at the Forefront of International Law conference at Arizona State University Law School, for which this paper was written. Thanks also to Kevin Crenny, Christopher Mirasola, Adrianna ScheerCook, and the UVA Law librarians for excellent research assistance. Although I previously served in the State Department, I have drawn only from publicly available information in writing this article. The opinions and characterizations in this piece are those of the author, and do not necessarily represent official positions of the U.S. Government. 714 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J. B. Reasons for Secrecy ....................................................................... 751 1. Publicity Would Defeat Commitment’s Legitimate Purpose ..................................................................................... 751 2. Enhanced Transparency Behind the Veil ................................. 753 3. Deference to Sovereignty ......................................................... 755 4. Lack of Public Support............................................................. 756 5. Facilitating Illegality ................................................................ 758 C. Substantive Consistency with the U.N. Charter ............................. 759 1. Enhancing Self-defense ............................................................ 761 2. Avoiding Conflict .................................................................... 762 3. Furthering International Law ................................................... 765 4. Exceptions ................................................................................ 766 D. Internalizing the Charter ................................................................ 769 III. CHECKING SECRET COMMITMENTS ....................................................... 773 A. Legislative Checks ......................................................................... 774 B. Inter-agency Checks ....................................................................... 776 C. Intra-agency Checks ....................................................................... 778 D. Foreign Checks .............................................................................. 781 E. Enhancing Oversight of Secret Commitments ............................... 782 1. Expanding Congressional Oversight of Secret Arrangements ........................................................................... 782 2. Enhancing Inter-agency Checks ............................................... 784 3. Diversifying Intra-agency Checks............................................ 784 IV. INFORMING THE LITERATURE ................................................................ 786 A. Executive Power............................................................................. 786 B. Secrecy ........................................................................................... 788 C. Treaty-Making and Compliance .................................................... 790 1. Reputation-Driven Compliance ............................................... 791 2. Power of Political Commitments ............................................. 792 V. CONCLUSION ......................................................................................... 793 INTRODUCTION Secret international agreements have a bad reputation. Ever since states misused secret agreements during World War I, commentators have been quick to condemn these agreements as pernicious and destabilizing to international peace and security. As that war wound down, the prevailing view—crystallized most prominently by President Woodrow Wilson in his 49:0713] SECRET AGREEMENTS 715 Fourteen Points—was that the use of secret agreements exacerbated the war’s violence and should be abandoned. Many of the secret agreements of that era also undercut notions of self-determination and revealed hypocritical policies by democratic governments. The concerns triggered by secret agreements were so salient that states crafting the League of Nations Covenant and then the United Nations Charter included provisions intended to eliminate the use of these agreements. Conventional wisdom holds that the Charter has largely achieved this goal. As a descriptive matter, commentators today commonly assert that the use of secret agreements is rare, due in part to the norms in the Charter that favor the publication of international agreements and disfavor secrecy.1 Many international legal scholars seem implicitly to accept this descriptive claim, and focus their work almost entirely on the public products of state-to-state interactions (such as international agreements and resolutions produced by international organizations).2 Those who study foreign relations and the Executive’s powers within the U.S. legal system likewise tend to focus on the Executive’s public behavior and outputs; they spend much less time exploring how the Executive conducts international relations behind the curtain. It is almost enough to make one believe that secret agreements have disappeared from the international stage. Many would celebrate this disappearance. Various scholars argue that secret agreements inhibit peaceful relations among states and that their use signals that states are pursuing substantive goals that violate international law.3 This normative perspective on secret agreements finds its genesis in the 1. See, e.g., VIENNA CONVENTION ON THE LAW OF TREATIES: A COMMENTARY 1341 (Oliver Dorr & Kirsten Schmalenbach eds., 2012) [hereinafter VIENNA CONVENTION COMMENTARY] (stating that secret treaties no longer play an essential role in international relations); Charles Lipson, Why Are Some International Agreements Informal?, in INTERNATIONAL LAW AND INTERNATIONAL RELATIONS 293, 328 (Beth A. Simmons & Richard H. Steinberg eds., 2007); Kal Raustiala, Form and Substance in International Agreements, 99 AM. J. INT’L L. 581, 583 (2005) (describing secret agreements as “[l]ess in favor today”). For a general discussion of transparency norms in international law, see TRANSPARENCY IN INTERNATIONAL LAW (Andrea Bianchi & Anne Peters eds., 2013). 2. See generally, e.g., ANTHONY AUST, MODERN TREATY LAW AND PRACTICE (2d ed. 2007) (containing extensive discussion of treaty practice but virtually no discussion of secret agreements); SECRECY AND FOREIGN POLICY (Thomas Franck & Edward Weisband eds., 1974) (discussing various aspects of secrecy in foreign relations but mentioning “secret treaty commitments” in a single paragraph). Some scholars may recognize that secret commitments exist and that states find them useful, but choose not to write about the issue because of the methodological challenges described herein. 3. See generally, e.g., Richard Caddell, Secret Treaties, in MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW (Rudiger Wolfrum ed., 2006) (“In the current era, secret treaty- making carries negative connotations . .”). 716 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J. specific historical context of World War I, but a range of secrecy scholars today have limned more contemporary critiques of secret law.4 There the story has stood: secret agreements are rare, and that is something to celebrate. But the story is wrong, descriptively and normatively. Secret international commitments, it turns out, are
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