Journal of the history of International Law 19 (2017) 246–273 JHIL brill.com/jhil Leon Trotsky and the Prohibition against Secret Treaties John Quigley Moritz College of Law, The Ohio State University, Columbus, OH 43210, USA [email protected] Abstract A requirement was written into the Covenant of the League of Nations that treaties be communicated to the League for publication. This innovation is widely attributed to US President Woodrow Wilson, who drafted the language for the League Covenant on this issue. What is less remembered is that behind Wilson’s initiative lay an action by Leon Trotsky, Commissar for Foreign Affairs of the fledgling Soviet Russian govern- ment, who revealed treaties that had been concluded secretly on the Allied side during World War I in which various states were promised territorial gains upon the antici- pated successful conclusion of the war. Trotsky’s revelation gained world attention and mobilized public sentiment against secret arrangements between governments. Wilson took his initiative in this context. The registration of treaties, which later was carried over into the Charter of the United Nations, has become one of the most important institutions of the modern international order. Keywords treaties − League of Nations − Russian Revolution − Leon Trotsky − secret diplomacy − Sykes-Picot treaty − Woodrow Wilson − World War I 1 Introduction A key aspect of contemporary international treaty practice is a requirement that treaties be registered with the United Nations. All states that are UN members are required to register any treaty into which they enter. While the requirement may seem a minor matter of bureaucratic detail, its origins are © koninklijke brill nv, leiden, ���7 | doi �0.��63/�57�8050-�9Downloaded�3�0�7 from Brill.com09/26/2021 01:33:52AM via free access Leon Trotsky and the Prohibition against Secret Treaties 247 connected with events that shattered the world order in the early years of the twentieth century. The registration requirement dates from the time of the formation of the League of Nations at the end of World War I. A central role was played by US President Woodrow Wilson, who famously included as one of his Fourteen Points for a post-war settlement the proposition that treaties should be made public. What is less often noted is that Wilson took up the cause of open trea- ties only following the disclosure of previously secret treaties by the govern- ment that came to power in Russia following the Bolshevik Revolution of 1917. These disclosures embarrassed the European powers and put the issue of secret treaties on the international agenda. The disclosures raised the ques- tion of major-power domination of territory outside Europe, since some of the secret treaties concerned the disposition of territory that France and Britain were in the process of taking from the Ottoman Empire. The disclosures thus threatened the prevailing predominant role played in world politics by the major European powers. This article explores the role that the disclosures played in bringing into existence an international system for the registration of treaties. 2 Publicity of Treaties before World War I For centuries, states used secret agreements with other states to conceal actions they desired to take but that might not have played well had they been publicly known.1 An example is a secret protocol to an otherwise public 1797 treaty concluded by Russia, Prussia, and Austria in connection with the third partition of Poland.2 The public treaty effected the division of Poland among the three powers, effectively ending the existence of Poland.3 An act of abdi- cation of Poland’s king was appended. But the three powers wanted to go fur- ther than simply to divide up what remained of Poland’s territory. To prevent a resurgence of Poland, they wanted to bury even the idea of Poland. To this end, 1 Edward Grosek, The Secret Treaties of History (Buffalo: William S. Hein 2007). 2 Patrice Dabrowski, Poland: The First Thousand Years (DeKalb IL: Northern Illinois University Press 2014), 288. Jerzy Lukowski, The Partitions of Poland 1772, 1793, 1795 (London: Longman 1999), 182. 3 F. Martens, Recueil des traités et conventions conclus par la Russie avec les puissances étrangères (St. Pétersbourg: A. Devrient 1875), vol. 2, 291 (giving treaty text with no title). Reproduced under the title Agreement between Prussia and Russia for the Settlement of the Polish Debts, January 15 (26), 1797, in Clive Parry, Consolidated Treaty Series 53 (1795–1797), 411. Journal of the History of International Law 19 (2017)Downloaded 246–273 from Brill.com09/26/2021 01:33:52AM via free access 248 Quigley they concluded a protocol to the public treaty, a protocol that would not be disclosed when the public treaty was promulgated. The operative clause of the protocol read, The need to abolish anything that might recall the memory of the exis- tence of the Polish Kingdom once the annulment of this political entity is effectuated having been recognized, . the High Contracting Parties are agreed and undertake never to include in their titles for the three Courts the name or designation of the Polish Kingdom, which will re- main henceforward and forever abolished.4 The monarchs of Russia, Prussia, and Austria were agreeing that they would not purport to be head of state of Poland. They would forego such a title with the aim of concealing the fact that Poland ever existed. Since this aim of abol- ishing the memory of a Poland might have seemed a bit heavy-handed, how- ever, they agreed among themselves to keep the protocol secret. The propriety of keeping treaties confidential was broadly accepted in the interactions among the states of Europe. The first challenge to this practice came on the floor of the National Convention in Paris during the French Revolution. Anti-monarchists called for transparency in governance, as part of their criticisms of the French monarchy. But once the monarchy fell, this line of argument faded quickly. The Republican government found itself in peace treaty talks with other European powers, and the question was formally raised before it, ‘Will there be secret articles?’ meaning secret provisions in treaties. Approval was given to the practice, secrecy in treaties being regarded as useful. Negotiators for France discovered that other governments were insisting on secrecy as a condition of coming to terms. The view that prevailed was reflected in the remark of one delegate that ‘It is only enemies of peace who oppose secret articles in the treaties’.5 4 [Untitled] Donné à Grodno ce 14 (25) novembre et de Notre règne la 32 année. Stanislas Auguste Roi (L.S.) Contre-signé: S. Kniaz de Kozielsk Puzyna, Secrétair du Cabinet de Sa Majesté. Acte d’Accession de S.M. l’Empereur des Romains à l’article séparé et secret de la Convention du 26 (15) Janvier 1797 entre S.M. l’Empereur de toutes les Russies et S.M. Prussienne, in Martens, Recueil des Traités 1875 (n. 3), vol. 2, 303 (English translation by author from the authentic French and Russian texts). Also in Clive Parry, Consolidated Treaty Series 53 (1795–1797), 425. 5 Albert Dauzat, ‘La convention et les traités secrets’, Revue Politique et Parlementaire 72 (1912), 371–379, 373. Journal of the History of InternationalDownloaded Law from 19 Brill.com09/26/2021(2017) 246–273 01:33:52AM via free access Leon Trotsky and the Prohibition against Secret Treaties 249 At that same era, Immanuel Kant raised the issue of the publicity of pub- lic acts in his tract Perpetual Peace. Kant posited a requirement that all state actions be subjected to publicity. Kant wrote of “a transcendent formula of public right; here it is: “All the actions, relative to the right of another, whose maxim is not susceptible of publicity, are unjust”.6 Kant was not specific, how- ever, as to treaties. The first major break in the practice of secret treaties came on the other side of the Atlantic Ocean. The 1789 Constitution of the newly formed United States of America included a provision on treaties that placed the power to ratify treaties on behalf of the United States in the newly instituted office of President. The provision required, however, that before being authorized to ratify a treaty, the President must gain approval of it by the Senate, the upper chamber of the US Congress.7 A parliamentary role in treaty-making was an innovation. When the trea- ty provision of the US Constitution was being debated in 1787 at the Federal Convention, the argument was made, in fact, that the House of Representatives needed to be excluded from the treaty-approval process in order to facilitate se- crecy in treaty-making. Roger Sherman, delegate from Connecticut, explained, ‘The necessity of secrecy in the case of treaties forbade a reference of them to the whole legislature’.8 Once the Constitution was in force, the US Senate conducted debate and voting on a treaty in a closed session. Treaties were considered under an in- junction of secrecy under a Senate rule that debate and voting be kept secret. The injunction of secrecy could be lifted once proceedings were completed.9 In 1818, the US Congress took action that led to the publication of treaties. In that year, the Congress decided that all of its enactments should be published.10 An Act of 1818 directed the Secretary of State to publish all Acts of the Congress, ‘including public treaties made and ratified since the then last publication of the laws’.11 Thus, ‘Act’ was defined to include treaties. This requirement of 6 Immanuel Kant, Project for a Perpetual Peace: A Philosophical Essay (London: Vernor and Hood 1796), 66.