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Leon Trotsky and the Prohibition against Secret Treaties

In: Journal of the History of International Law / Revue d'histoire du droit international
Author: John Quigley1
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  • 1 Moritz College of Law, The Ohio State UniversityColumbus, OH 43210USAquigley.2@osu.edu
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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 government, 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 anticipated 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.

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 government, 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 anticipated 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.

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 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 treaties only following the disclosure of previously secret treaties by the government 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 question 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 abdication of Poland’s king was appended. But the three powers wanted to go further 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, 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 existence 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 remain 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 abolishing the memory of a Poland might have seemed a bit heavy-handed, however, 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

At that same era, Immanuel Kant raised the issue of the publicity of public 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, however, 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 treaty 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 secrecy 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 injunction 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 publication of treaties ensured that the Senate and President could not keep their actions secret, even if the treaty partner was maintaining secrecy.

In 1845, a volume of the official us legislative publication, called Statutes at Large, was published, containing treaties concluded from the time of the formation of the United States to that date with ‘Indian nations’.12 A companion volume to Statutes at Large, published the same year, contained treaties for the same time period with ‘foreign nations’.13 The two volumes put us treaties into the public realm. From 1845 on, treaties concluded in each legislative session were published in Statutes at Large.

The American requirement was not ironclad, to be sure, because by prac tice the President concluded some agreements with foreign states without submitting them to the Senate for approval. Such agreements would not have been considered ‘treaties’, since the us Constitution confines that term to agreements approved by the Senate. But major agreements, especially those affecting war and peace, did not fall to the President to be concluded without the Senate. Thus, by the middle of the nineteenth century, the United States was publishing treaties of major significance.

3 Efforts before World War i to Require Publication of Treaties

The European powers imposed no similar requirement on themselves. By the late nineteenth century, however, pressure built from below in Europe for publicity in treaty-making. The pressure came from two distinct directions. One source was a body of sentiment that sought to end war, and in particular wars that might be started by multiple states acting in concert. The other source was concern in academic circles in Europe that as treaties began to displace customary norms in international law, the body of treaty law should be known and accessible.

The latter body of sentiment was reflected first in 1875, when Franz von Holzendorff advocated the creation of a central international authority in which treaties would be deposited and published.14 Von Holzendorff was the first to make such a suggestion in a way that gained attention.15 Von Holzendorff’s idea was that a central authority could be effective in ensuring not only that the contents of treaties were disclosed, but that they would be published in a fashion that would make them readily accessible.

In 1885, the Institute of International Law, an important scholarly organisation in Europe, issued a recommendation that governments should publish their treaties. But recognizing the reluctance of governments to publicize agreements on sensitive topics, the Institute called for the publication only of treaties ‘dont la publication ne serait pas interdite par des raisons d’État ou par des convenances politiques’. The Institute stated in the resolution that it was motivated by a desire that treaties be available to scholars. It expressed the hope that publication would be ‘complètes que possible, pour qu’elles puissent offrir à la science du droit international la connaissance parfaite et exacte des relations de droit actuellement en vigueur entre les différents États’.16

The Institute’s concern related to the science of international law. The Institute, as an assemblage of scholars, wanted treaties to be more readily available for analysis. At the Institute’s 1885 session, Ferdinand Martitz, a German scholar, noted that treaties were gaining ground over customary norms as a source of international law. In order to know the ‘règles effectivement suivies dans le domaine international’, said Martitz, ‘il faut connaître tous les traités, avoir égard à ce qui se fait partout’. Martitz noted that treaty collections as made available by governments varied considerably in their quality. He called for publication not only of treaties but of tables or indices to facilitate research on treaties.17

The issue was on the agenda of the Institute at its Heidelberg session in 1887 and its Lausanne session in 1888, without producing any advances. But in 1891, the governments of both Switzerland and Belgium expressed interest in von Holzendorff’s idea of a central organ for treaty publication. The Institute adopted a resolution advocating the formation of a ‘Union international’ that would publish treaties.18 The Institute followed up in 1892 with the text of a draft treaty to establish a ‘Union internationale pour la publication des traités entre États’. The draft treaty would have required states to communicate treaties promptly upon conclusion to a bureau of the Union, projected to be housed in Berne.19

The draft treaty was communicated to the Swiss government, with the expectation that it might confer with other governments on the matter. The Swiss government issued an invitation to other states for a conference to consider the creation of such a Union. States responded favourably, and the conference was held in 1894. Eighteen states attended, and twelve more indicated approval in principle of the idea of a Union.20 The conference, however, arrived at no concrete conclusion, so nothing was created. The Belgian government tried to revive the idea in 1895, but too few states responded.

Treaty collections were being produced privately. In the late eighteenth century, Georg Friedrich von Martens, a German scholar, initiated theNouveau recueil général de traités et autres actes relatifs aux rapports de droit international. But private production was not thought to be adequate. By the turn of the twentieth century, as Shabtai Rosenne writes, ‘informed internationalist opinion’ had

come to accept the view that there was a need for some regular and centralized exchange and publication of information (including texts) concerning international treaties, both multilateral and bilateral, and that this should no longer be left exclusively to private enterprise.21

Some governments like the United States, as already noted, were by this time publishing their own treaties. Britain published its treaties as ‘command papers’. Russia was doing so as well. Russia produced in the latter years of the nineteenth century a Recueil des traités et conventions conclus par la Russie avec les puissances étrangères, under the editorship of Fedor Fiodorovich Martens. Publication by individual governments gave, however, no assurance that some treaties were not being kept secret. Concern about secret treaties based on fear that governments would take action against international peace manifested itself at the turn of the twentieth century. In 1896, the International Socialist Congress, meeting in London, discussed secret treaties and resolved that they should be regarded as null.22 In the context of discussing how to end war, it was declared at the Congress that the working class ‘protest against the system of Secret Treaties’.23 The concern was machinations among governments to wage war. Quite a few European countries by this time required parliamentary participation in treaty-making. Parliamentary participation was regarded as a restraint on the executive branch in the direction of publicity.24 It did not, however, deprive the executive of the power to enter into secret treaties.25

The concerns of the International Socialist Congress enjoyed a certain socialist pedigree, because earlier in the century the Crimean war had prompted Karl Marx to compose a work about secret intrigues between European powers during the eighteenth century. In 1856 and 1857 Marx compiled the texts of diplomatic correspondence that focused on secret interactions, particularly between Britain and Russia.26

By the time of World War i, governments were being criticized for failing to ensure the public that they would not conclude treaties in secret. Opinion was growing in favour of some international procedure whereby governments would report their treaties. Prior to World War i, however, no action was taken by governments either towards creating a central agency or towards requiring states individually to publish their treaties.27

During the war, the issue was taken up by a Hague-based non-governmental organisation, the Central Organisation for a Durable Peace. This group advocated for many reforms that would shortly be taken up by states: arms reduction, respect for wishes of the local population in transfers of territory, and protection for the rights of minority populations. One of its proposed reforms was to have foreign policy of governments placed under the control of domestic parliaments, a reform that the Organisation considered linked to a further reform that would withhold validity from secret treaties. In a report on what would constitute a minimum program for a durable peace, it was declared, ‘If the civilized nations of the world really want to create the conditions of a durable peace, they must come to an agreement absolutely forbidding all secret treaties. By such agreement they would carry out the principle of publicity, so intimately connected with democracy, and strengthen the feeling of international confidence which is one of the most essential conditions to the great work of reorganization that the European nations are now confronted with’.28 Eliminating secret treaties thus was regarded as something of a guarantee against war. The Organisation adopted the view that ‘secret treaties should be null’.29

Publicity of treaties was also seen by the Organisation as necessary to ensure democracy. ‘Secret Treaties and secret clauses to treaties should be abolished’, it was declared in another report of the Central Organisation for a Durable Peace. In that way, ‘the people as a whole would be aware of its commitments’.30

4 Secret Treaties of World War i

When war broke out in Europe in 1914, concern was expressed by commentators that behind-the-scenes machinations were involved. ‘The outbreak of the great European War’, wrote two Norwegian scholars in 1916, ‘and the incidents that had a part in bringing it about, have made it plain that a change of system is an imperative necessity. The freedom of nations will never be secure until democracy has asserted itself in foreign affairs’.31

The onset of World War i did in fact see secret treaties playing a role.32 On 2 August 1914, just as the first hostilities began, Germany and Turkey concluded an agreement of alliance in which they vowed to defend each other. The agreement recited that it was to be kept secret.33 A 1914 treaty of alliance between Austria-Hungary and Bulgaria contained a clause to keep it secret, reading, ‘Le présent traité restera secret jusqu’à nouvelle entente préalable’.34 A 1915 treaty between the same parties contemplating military action against Serbia and acquisition of certain Serb territory by Bulgaria was designated as secret.35

The members of the Entente, the powers allied against Germany and the Ottoman Empire, entered into a number of secret agreements among themselves regarding territory they anticipated they would acquire at war’s end, with promises to Russia and Italy in particular.36 Britain and France concluded a secret agreement during the war that was to attract much attention after the war. The agreement related to the Arab territory in the Ottoman Empire. Britain and France hoped to drive Turkey out of this territory. In 1916 the two of them agreed that if they succeeded, they would allow the Arabs to form a state, or perhaps a confederation of states, in this territory. Importantly, however, they would keep a major role in governance for themselves. This arrangement was memorialized in a 9 May 1916 letter written by France’s ambassador in London, and a brief response letter dated 16 May 1916 from the British foreign secretary. The exchange of letters came to be called the Sykes-Picot agreement, named for the British and French representatives who negotiated it. The agreement included a map that used colours to code the areas of anticipated British and French control. It stated:

That France and Great Britain are prepared to recognize and protect an independent Arab state or a confederation of Arab states (a) and (b) marked on the annexed map, under the suzerainty of an Arab chief. That in area (a) France, and in area (b) Great Britain, shall have priority of right of enterprise and local loans. That in area (a) France, and in area (b) Great Britain, shall alone supply advisers or foreign functionaries at the request of the Arab state or confederation of Arab states.

That in the blue area France, and in the red area Great Britain, shall be allowed to establish such direct or indirect administration or control as they desire and as they may think fit to arrange with the Arab state or confederation of Arab states.

That in the brown area there shall be established an international administration, the form of which is to be decided upon after consultation with Russia, and subsequently in consultation with the other allies, and the representatives of the sheriff of Mecca.

That Great Britain be accorded (1) the ports of Haifa and Acre, (2) guarantee of a given supply of water from the Tigres and Euphrates in area (a) for area (b). His majesty’s government, on their part, undertake that they will at no time enter into negotiations for the cession of Cyprus to any third power without the previous consent of the French government.37

The blue French area referenced in the agreement encompassed Syria and Lebanon. The red British area encompassed Jordan and Mesopotamia, soon to be called Iraq. Palestine was in the ‘brown’ area, to be internationalized, with Russia playing a role. Russia had been consulted and had acquiesced in the Sykes-Picot text.38

Britain and France kept this agreement under wraps. Only a few months prior to May 1916, Britain had promised complete independence to the Arabs. The British wanted military help from Arabs against Turkey. The Arabs were willing but wanted an assurance of independence, once the Ottomans were defeated. Sir Henry McMahon, British High Commissioner in Egypt, discussed the matter with a leader of the Arab nationalist movement, Hussein Ibn Ali, Sherif of Mecca. McMahon made a commitment to Hussein in a letter dated 24 October 1915. McMahon wrote, ‘Great Britain is prepared to recognise and support the independence of the Arabs in all the regions within the limits demanded by the Sherif of Mecca’.39 The Sykes-Picot agreement, preserving an administrative role for France and Britain, contradicted McMahon’s commitment to Hussein.

5 Disclosure by Trotsky of Secret Treaties of World War i

Russia figured in the Sykes-Picot agreement because of its connection to Eastern Orthodox interests in Jerusalem. As a result, a copy of the agreement was shared by France and Britain with Russia’s Foreign Office. When the Bolsheviks took power in Russia in November 1917, they were anxious to see what they might find in the tsarist files. Leon Trotsky, as commissar for foreign affairs, took the lead in this project. He found a memorandum dated 21 February 1917 that contained the Sykes-Picot text. Trotsky understood the impact that disclosure could have, since the treaty, despite its contemplation of statehood, showed France and Britain as duplicitous in relation to the Arabs. Trotsky published a summary of the Sykes-Picot text in the government newspaper Izvestiia under the headline ‘Secret Diplomacy and the Question of Palestine’.40

Information about a number of the secret agreements had, to be sure, become known outside the governments involved.41 Edward House, the influential Wilson advisor, noted in a diary entry of August 1917 that the terms of the secret agreements among the Allies were by that time not entirely secret. ‘They know in Turkey’, House wrote, ‘of the secret treaties which the Allies have made among themselves, in which they have cheerfully partitioned Turkey’.42

Still, the public did not know. A whole series of secret agreements were found by Trotsky. The revelation of them created an immediate media sensation. Major newspapers in the United States carried banner headlines. The Los Angeles Times recounted a number of the treaties under the headline ‘Secret Documents Published in Russia: “Reds” disclose text of papers found in official archives’.43 The Washington Post proclaimed, ‘Trotzky Reveals Secret Treaties and Notes Exchanged by Allies’.44 The New York Times headline on the revelation read, ‘Give War Aims of Allies’.45 A us military journal, the Confidential Press Review, issued by the Second Section of the General Staff, General Headquarters of the American Expeditionary Forces, published a summary of Trotsky’s documents.46

The British press gave full coverage. The Times of London recounted the contents of a document in which Russia was to gain control of the Bosporus.47 It also reported a 23 November 1917 speech of Trotsky, in which he said that all of Russia’s secret treaties were in Bolshevik hands and that they were ‘even more cynical in their contents than we had supposed’.48 The Manchester Guardian published the text of a 6 March 1917 memorandum between Russia, France, and Britain that Trotsky had also disclosed, sketching territory that each would take.49

6 Trotsky’s Chilling Commentary

Trotsky used the disclosures to bolster his call for world revolution. In his written introduction to the treaties as published, Trotsky wrote, ‘We want the rule of capital to be overthrown as soon as possible’.50 The disclosure was the more disconcerting to the major Western powers because they were a boost to the Bolsheviks’ efforts against the capitalist West. The Bolsheviks were calling for a worker revolt on a worldwide basis.51

Trotsky hoped that the revelation of the secret treaties plus the simultaneous Bolshevik move towards a separate peace with Germany would force Western governments into choosing between withdrawing from the war and being overthrown by their own working class.52 Trotsky tied secret diplomacy to the governments the Bolsheviks sought to overthrow. ‘Secret diplomacy’, he wrote when releasing the treaties, ‘is a necessary tool for a propertied minority which is compelled to deceive the majority in order to subject it to its interests. Imperialism, with its dark plans of conquest and its robber alliances and deals, developed the system of secret diplomacy to the highest level. The struggle against the imperialism which is exhausting and destroying the peoples of Europe is at the same time a struggle against capitalist diplomacy, which has cause enough to fear the light of day’.53 Trotsky thus put the Western governments on notice that secrecy in diplomacy would be a practice that he would highlight as the Bolsheviks crusaded against them.

7 Reaction of the United States to the Disclosures

The disclosure of the secret treaties had an impact on governments and well beyond the corridors of power. ‘Public opinion’, wrote Arnold McNair, ‘was deeply shocked by certain revelations of secret diplomatic exchanges and secret treaties’, because the major powers had promised one thing in public while they agreed to something else in private.54 Non-governmental organisations promoting peace took up the issue. They approached the British government to demand ‘an end to secret diplomacy’. They demanded a role for Parliament to oversee executive branch decisions in foreign affairs.55 Manley Hudson, a leading American legal scholar of the period, explained the explosive impact of Trotsky’s revelations. Hudson wrote, ‘when the Soviet government of Russia published various documents from the archives of the Russian Foreign Office, an insistent demand was created throughout the world for the abolition of secret diplomacy’.56

Worry over Bolshevism spread as far as the United States, President Woodrow Wilson expressed the concern to a British colleague, telling him, ‘The spirit of the Bolsheviki is lurking everywhere’, and, ‘There is grave unrest all over the world’.57 In the United States, workers’ organisations took a violent turn. Members of the Industrial Workers of the World were prosecuted in court for advocating violence.58 The Federal Bureau of Investigation crusaded against worker organisations suspected of Bolshevik sympathies.59

This atmosphere lent added weight to Trotsky’s disclosure of secret treaties. The secret treaties reflected the malfeasance of the imperialist powers whose overthrow the Bolsheviks sought. President Woodrow Wilson reacted strongly to the disclosures. Wilson in general was critical of the European powers for the control they exercised outside Europe, and the Bolshevik revelations gave him additional evidence of Europe’s misdeeds.

The press coverage and public reaction to the disclosures also impacted Wilson, reportedly exerting a ‘profound effect’ on him.60 Arnold McNair wrote that the ‘public opinion . . . found expression in the first of President Woodrow Wilson’s Fourteen Points’. McNair was referring to Wilson’s speech to the us Congress in January 1918, in which Wilson gave fourteen ‘points’ for which he said the United States was fighting by its entry into the European war.61 Heading Wilson’s list was the subject of secret treaties. The first of his fourteen was ‘open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind, but diplomacy shall proceed always frankly and in the public view’.62 Wilson clarified in a letter to Secretary of State Robert Lansing two months later,

when I pronounced for open diplomacy I meant, not that there should be no private discussion of delicate matters, but that no secret agreements of any sort should be entered into, and that all international relations when fixed should be open, aboveboard and explicit.63

Wilson made clear in the speech in which he recited his fourteen points that his concern about secret treaties related specifically to treaties aimed at disadvantaging weaker peoples by the European powers. Wilson said:

It will be our wish and purpose that the processes of peace, when they are begun, shall be absolutely open and that they shall involve and permit henceforth no secret understandings of any kind. The day of conquest and aggrandizement is gone by; so is also the day of secret covenants entered into in the interest of particular governments and likely at some unlooked-for moment to upset the peace of the world. It is this happy fact, now clear to the view of every public man whose thoughts do not still linger in an age that is dead and gone, which makes it possible for every nation whose purposes are consistent with justice and the peace of the world to avow now or at any other time the objects it has in view.

Wilson was responding, without so saying, to the Bolshevik revolution, which was making anti-colonialism a major point in its list of accusations against capitalism. The fourteen points had their origin in the mind of Edward House, Wilson’s closest advisor, whose focus was strongly on what was occurring in Russia. House was in contact with Boris Bakhmetief, the provisional Russian government’s ambassador in Washington. The Bolsheviks at the time were proposing an armistice in the war against Germany, and the Allies, with whom the United States was acting in the war, were opposed. If Russia pulled out of the war on its own, Germany would have more troops available to use on the Western front. The idea behind the fourteen points was to respond to the Bolsheviks’ appeal for peace.64 Showing America’s war aims as unselfish might appeal to what sentiment remained in Russia for staying the course against Germany. So not only the first point – focusing on secret treaties – but the entire set of points was a response to Bolshevism.65

8 Impact of the Disclosures on Policy: International Labour Organisation, Mandate System

To make matters worse for the Western powers, the Bolshevik government seemed to have a momentum that might let Trotsky achieve this aim. In Germany, workers abandoned factories to march on the institutions of political power. In the closing weeks of 1918, Kaiser Wilhelm ii was forced to abdicate, and the monarchy ended.66 By the time the Allies assembled at Versailles to chart a post-war disposition, a government friendly to Russia’s Bolsheviks had taken power in Germany.67 ‘The general postwar atmosphere’, wrote one historian, ‘raised prominently in the minds of Western statesmen the threat of Bolshevism, not only to Russia and Germany, but even to their own countries’.68

One measure the Allies took to blunt the ideological démarche of the Bolsheviks was to shore up the position of labour in the Western world. At the Versailles peace conference, a decision was taken to establish the International Labour Organization, as a hedge against Bolshevism. A constitution for this new entity was written into the Treaty of Peace with Germany.69 The Allies viewed the establishment of the ilo, designed to enhance workers’ rights, as ‘capitalism’s defence against the spectre of spreading socialism which had just established itself in the largest country in Europe [a reference to Russia]’.70

Disclosure of the Sykes-Picot agreement in particular elicited a direct response from Britain. The disclosure required damage control. On 5 January 1918, British Prime Minister David Lloyd George said that Britain was re-thinking its plans for a post-war disposition in the Ottoman territories: ‘Mesopotamia, Syria and Palestine are in our judgment entitled to a recognition of their separate national conditions’. Continuing, in an oblique reference to the Sykes-Picot agreement, he said,

Much has been said about the arrangements we have entered into with our Allies on this and other subjects. I can only say that as new circumstances like the Russian collapse and the separate Russian negotiations [with Germany] have changed the conditions under which those arrangements were made, we are, and always have been, perfectly ready to discuss them with our Allies.71

Britain and France did proceed to take control per Sykes-Picot. In December 1918, they modified Sykes-Picot to remove Russia from a role in Palestine. Instead of an internationalized Palestine as was contemplated in Sykes-Picot, Palestine would fall to Britain.72 At the Paris Peace Conference France and Britain were forced to explain Sykes-Picot. At the conference, Wilson asked ‘whether France would be agreeable to the Syrians’. ‘The same’, he said, ‘applied as to whether Great Britain would be agreeable to the inhabitants of Mesopotamia’. Wilson said in this regard, ‘One of the fundamental principles to which the United States of America adhered was the consent of the governed’. Wilson warned France that 100,000 Arab troops would fight against France in Syria, since the Arabs sought independence.73

Britain and France were forced to give more play to the self-determination demand of the Arabs. The Covenant of the League of Nations was drafted to include provisions that would allow for France and Britain to take over in the territories from which they were ousting Ottoman forces, but with the understanding that ‘their existence as independent states can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatary until such time as they are able to stand alone’.74 The idea behind this last phrase was that the role accorded to Britain and France was temporary. Moreover, Britain and France would, by the terms of the Covenant, be required to render regular reports to the League of Nations on their stewardship over these territories. Britain and France, with the concurrence of the other Allies, were allowed to divide up the Arab territories into Mesopotamia, Syria, and Palestine, with France taking the mandate for Syria, and Britain taking the mandate for Mesopotamia and Palestine.75 Thus, Britain and France were not able to implement Sykes-Picot in exactly the way they had contemplated. Pressure stemming from the disclosure of the Sykes-Picot agreement forced a modification. In the event, Britain was able to hold on to Iraq under this arrangement for just over a decade, and over Jordan (as a sector of Palestine) for three decades. France was able to hold on to Syria for only two decades.

9 Treaty Registration in the Covenant of the League of Nations

Trotsky’s disclosures had their major impact, however, on the issue of how states would in the future conclude treaties with each other. The disclosures elevated the issue of publicity of treaties from a low-visibility item promoted by academics and pro-peace activists to a hot-button issue of diplomacy at the highest level. us Secretary of State Lansing carried the issue as the Covenant was being drafted for the League of Nations. Although the United States would later decline to join the League, it played a central role in the drafting of the Covenant. The related ideas of a prohibition on secrecy in treaties and a registration system for treaties entered the discussion at Versailles by initiatives of the United States, which drafted language for that purpose for inclusion in the Covenant.76 The publicity surrounding the secret wartime treaties disclosed by Trotsky is widely regarded as having brought about a registration provision in the Covenant, through the intermediary of Woodrow Wilson.77

The secret treaty issue merited mention in the preamble of the League Covenant. The preamble set out the aims of the League. Only four aims were mentioned, and one of them was ‘open, just and honourable relations between nations’, an obvious reference to an obligation to avoid secret treaties. The Preamble read:

The High Contracting Parties,
In order to promote international co-operation and to achieve international peace and security
by the acceptance of obligations not to resort to war,
by the prescription of open, just and honourable relations between nations,
by the firm establishment of the understandings of international law as the actual rule of conduct among Governments, and
by the maintenance of justice and a scrupulous respect for all treaty obligations in the dealings of organized peoples with one another,
Agree to this Covenant of the League of Nations.

In an operative paragraph, Article 18, the Covenant dealt with the issue of secret treaties by requiring both openness and registration, even adding a sanction:

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.78

The registration requirement thus came with serious enforcement. A treaty not registered was of no binding effect. This requirement went well beyond the proposals of the Institute of International Law. The Institute sought only to encourage states to make treaties available for study. The League sought to prevent states from engaging in conduct they were not willing to subject to public scrutiny. The purpose of the requirement thus underwent a radical transformation. Whereas the Institute had allowed for an exception if a treaty related to ‘raisons d’État’, no exceptions were contemplated by Article 18.

Manley Hudson called the provision ‘a striking innovation. No precedents for it existed’. Wilson commented on the huge change it would bring in the practice of treaty-making. Wilson said that ‘most persons who have not been conversant with the business of Foreign Offices do not realize how many hundreds of these agreements are made in a single year, and how difficult it might be to publish the more unimportant of them immediately’.79

10 Registration Practice under the League of Nations

Once the Covenant entered into force, the League of Nations set itself on a course of expansive enforcement of Article 18. On 19 May 1920, just four months after the Covenant’s effective date, the Council of the League adopted a Memorandum in which it spelled out in detail the obligations of states and of the League Secretariat in regard to the registration of treaties. The Council explained that ‘hereafter’ in Article 18 meant any treaty entering into force after 10 January 1920, the date on which the Covenant came into force. Since treaties were not to be binding until registered, the Council explained that they should be presented for registration by the date on which the treaty enters into force. If a treaty was presented for registration before entering into force, states were to inform the Secretariat when the treaty subsequently entered into force. League members were to register treaties even if the other party or parties were not members. According to the Council’s Memorandum, the Secretariat would publish registered treaties.

The Council explained the importance of registration:

It is hardly necessary to dwell on the importance of an arrangement whereby publicity of Treaties and other International Engagements – and, as a preliminary thereto, their registration – will be secured. Publicity has for a long time been considered as a source of moral strength in the administration of National Law. It should equally strengthen the laws and engagements which exist between nations. It will promote public control. It will awaken public interest. It will remove causes for distrust and conflict. Publicity alone will enable the League of Nations to extend a moral sanction to the contractual obligations of its Members. It will, moreover, contribute to the formation of a clear and indisputable system of International Law.80

The Council thus reverted to the aim of the Institute, which saw publicity of treaties as facilitating the development of international law. It also reverted to avoid the negative consequences of states acting covertly.

The League Secretariat carried through on the League’s obligation, expressed in Article 18, to publish the treaties that were registered. The collection was titled League of Nations Treaty Series: Publication of Treaties and International Engagements Registered with the Secretariat of the League. For the first time, treaties were available to the public in readily accessible form. This brought about what Holzendorff and the Institute of International Law had advocated, a central organ publishing treaties.

Britain early on found fault with the scope of the registration requirement. It objected that certain arrangements relating to financial matters should not have to be registered. A.J. Balfour, who served as Britain’s Foreign Secretary during the Versailles conference, said that Article 18 involved overkill. The aim, he said, had been to strike at ‘secret aggressive treaties injurious to the peace of nations’. But Article 18 covered any and all treaties.81

The League’s Committee of Jurists was asked to report on implementation of Article 18. The Committee lent support to Balfour’s objections, finding that ‘up to the present members of the League have by no means fully complied with the obligations of Article 18’. The Committee was not hopeful for improvement in compliance. ‘It would be a mistake’, it concluded, ‘to say that the text of the article as now worded could ever be fully or strictly carried out in practice’.82

Article 18 was the subject of intense discussion at the League as the Secretariat attempted to implement it. In line with the opinion of Balfour and the conclusion of the Committee of Jurists, Article 18 was thought to be impractical in requiring any and all treaties to be registered. The invalidity of a treaty that had not been registered was not insisted upon.83

There was great reluctance to admit the invalidity of a treaty that had been concluded in all respects so as to render it in force, but where registration had not been made. Various theories were aired as to the meaning of the registration requirement to restrict it. One was that such a treaty was in force between the parties, but no party could demand performance until the treaty was registered. Another theory was that the treaty was in force but could not be invoked before the League of Nations. The Committee of Jurists inclined to the latter view.84

Nonetheless, in the League’s early years a considerable number of treaties were registered.85 Only a small number of treaties of significance were not registered. Overall, during the period 1920 to 1946, 4834 treaties were registered with the League, a formidable total.86 Article 18 brought about a fundamental change in how states did business with one another. A 1930 commentator extolled the League of Nations Treaty Series for ‘the abundance, the variety, and the interest of the documents placed at the disposition of the public’.87

11 Treaty Registration in the Charter of the United Nations

A requirement of registration of treaties was carried over in the un Charter when it was drafted for the organisation that would succeed the League of Nations. There was consensus at the San Francisco conference where the un Charter was worked out that a registration requirement had proved useful in the League of Nations and that such a requirement should be continued.88 The requirement was written into the un Charter as Article 102, paragraph 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’. The Secretariat thus was tasked with the responsibility to accept the registration of treaties and to publish the texts.

A change was made as regards sanction, in line with the objections that had been levelled to Article 18 of the League Covenant. According to Hans Kelsen, a well-informed commentator on the un Charter, Article 18 ‘has been found to go too far’. Kelsen explained ‘that this experience [under the League] has led to the formation of Article 102, paragraph 2, of the Charter, restricting the invalidation of unregistered treaties to the legal realm of the Organisation’.89

The League Covenant provision that invalidated a treaty not yet registered thus was not carried over. A lesser sanction was instituted in un Charter Article 102, paragraph 2, which read: ‘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’. The rapporteur whose committee was responsible for drafting this provision at San Francisco explained,

The Committee has preferred to depart from the formula used in Article 18 of the Covenant of the League of Nations which states that non-registered treaties shall have no obligatory force. It has confined itself to a sanction which has reference to the faculty of the parties to invoke the international treaty or agreement before the Organization, which sanction, while giving all the efficacy desired by the obligation imposed in paragraph one, will not give rise in practice to difficulties of interpretation or application.90

A requirement of registration thus remained from the League Covenant, but the sanction was reduced in severity. No longer would a treaty be considered invalid in the event it was not registered.

12 Registration Practice under the Charter of the United Nations

Article 102 was taken quite seriously once the Charter came into force. The un General Assembly instructed the Secretary-General to submit a detailed proposal for implementation.91 The General Assembly then adopted the regulations.92 The regulations were aimed at providing uniform rules so that states would understand precisely the scope of their obligations for registering treaties. The Secretary-General published the regulations in a treaty collection he initiated, called the United Nations Treaty Series.93

This treaty collection continued the League of Nations Treaty Series. For many multilateral treaties, the Secretariat is designated in the text of the treaty itself as the depositary agency. For such treaties, a state ratifying or acceding need not supply the text, which will already be in the Secretariat’s possession. Instead, the state will send only a notice that it ratifies or accedes. Thus, the requirement of registering effectively applies to treaties, whether multilateral or bilateral, for which the Secretariat is not the depositary agency.

Publication proved beneficial. By the 1970s, however, the volume of treaties being submitted reached the point that the Secretariat could not register them in a timely manner.94 The Secretariat proposed omitting treaties it deemed to be of lesser significance, and this proposal was accepted by the General Assembly in 1978.95

Treaties were sent in substantial numbers to the Secretariat even by states that were not members of the United Nations and who thus had no obligation to do so. The Secretariat did not use the term ‘registration’ upon receipt of a treaty from a non-member, instead referring to the act as a ‘filing’. Nonetheless, the Secretariat undertook the work of accepting treaties from non-member states and of including them in the United Nations Treaty Series, even though the Secretariat had no legal obligation to do so.96 The Regulations drafted by the Secretary-General and approved by the General Assembly made provision, in fact, for filings by states not members of the United Nations.97

Building on the fact that even non-members were submitting treaties to the Secretary-General, the International Law Commission included in its draft of what became the Vienna Convention on the Law of Treaties a requirement of registration with the Secretary-General. Objection was raised in the ilc that such a provision was superfluous given the breadth of un membership. It was also questioned whether a treaty could impose a new obligation on the United Nations without its consent.98 Nonetheless the provision was included in the Vienna Convention on the Law of Treaties, stating, ‘Treaties shall, after their entry into force, be transmitted to the Secretariat of the United Nations for registration or filing and recording, as the case may be, and for publication’.99 The inclusion of a registration requirement in both the un Charter and the Vienna Convention on the Law of Treaties has led some commentators to consider the requirement to be a matter of customary international law.100

Article 102, paragraph 2, designed as an enforcement mechanism by precluding a party that has not registered a treaty from invoking it before any un organ, has rarely been a factor in un practice.101 It has been invoked on occasion by a party seeking to keep a treaty from being used, but these references to Article 102, paragraph 2, have not led to direct rulings on the question of whether a party may invoke a non-registered treaty.102 With one particular type of treaty, namely, special agreements (compromis) to refer a dispute to the International Court of Justice, the Court has not been insistent that the agreement be registered.103 While such agreements are indeed treaties, the states involved submit them to the Court, if not always to the Secretariat, hence there is no question of their being concealed.

13 Effectiveness of the Registration Requirement

A bilateral treaty typically comes to public knowledge if it is subjected to a ratification process, and in most states nowadays the ratification process involves the legislative branch of government, with that branch carrying out its role in ratification in public sessions. So it is on bilateral treaties that enter into force without ratification, that the requirement of registration has its greatest significance in preventing secrecy. The Sykes-Picot treaty had been one of these. It was concluded by Sykes and Picot on behalf of their governments and entered into force without ratification.

un member states have not uniformly complied with their obligation to register their treaties.104 While statistics are difficult to find, it appears that many treaties are never registered.105 As was true under the League Covenant, treaties with financial clauses are often considered too sensitive to register. In a study of lump-sum financial settlement agreements concluded from the end of World War ii to 1970, of a total of 126 such agreements, only 56 were registered.106

Secret treaties of the Sykes-Picot variety – providing for military action against third states or for acquisition of territory of third states – have been rare. One example in the League era occurred in connection with the Treaty of Nonaggression Between Germany and the Union of Soviet Socialist Republics, 23 August 1939.107A Protocol of the same date provided for spheres of influence for Germany and the ussr in the event of a “territorial and political rearrangement” in Poland and the Baltic states. A clause in the Protocol read, ‘This protocol shall be treated by both parties as strictly secret’.108 Germany had withdrawn from League membership in 1933, hence had no obligation to register. The ussr, however, was a member at that time and failed to register both the Treaty of Nonaggression and the Protocol.

In the United Nations era one finds treaties between France and ex-colonies in Africa with secret clauses allowing for military intervention by France in case of domestic unrest.109 As well, one can cite the secret Sèvres Protocol of 1956, whereby France, Britain, and Israel, all un members, agreed to initiate joint military action against Egypt. The Protocol recited, ‘The arrangements of the present protocol must remain strictly secret’.110 None of the states registered it. The three states did take military action against Egypt and were challenged in the un Security Council. There they denied having acted by prior agreement and did not mention the Sèvres Protocol, which only later came to public knowledge.111

14 Conclusion

It was the happenstance of a use of secret treaties by the World War i Allies in a manner that put the issue of treaty publicity on the international agenda. The issue, as we have seen, had been percolating in the preceding decades. It had long been thought that states should have to make public what they agreed with other states, both as a matter of democracy and as a way of keeping states from acting in their own self-interest to the detriment of others. However, nothing had occurred that overcame the perhaps natural reluctance of states to commit themselves to an administrative burden, and perhaps to jeopardize actions they may have wanted to take.

The issue would not have been raised to a battle cry in the international community had it not been for the circumstance of a revolution in Russia that brought to power a government that was only too happy to show up the overthrown tsarist government, and to embarrass the major European powers. For Leon Trotsky, the issue fit beautifully into the Soviet agenda. It showed the major European powers colluding to extend domination over territory. That scenario fit perfectly into the Soviet analysis of European colonialism and territorial aggrandizement.

Despite less than full compliance, the requirement for registration of treaties brought transparency and contributed to the rule of law in the international community. ‘[G]reat benefit has resulted’, wrote Arnold McNair in his treatise on treaties, ‘for it is just as impossible for a world seeking to organize its life on the basis of law to dispense with a published collection of treaties as it would be for a civilized State to dispense with a Statute Book’.112 McNair’s judgment is doubtless sound. The registration of treaties effected a fundamental transformation in the manner in which states interact.

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.

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.

6 Immanuel Kant, Project for a Perpetual Peace: A Philosophical Essay (London: Vernor and Hood 1796), 66.

7 us Constitution, Art. 2, second paragraph.

8 Arthur Prescott, Drafting the Federal Constitution (Baton Rouge: Louisiana State University Press 1941), 460. Samuel Crandall, Treaties: Their Making and Enforcement (Washington: John Byrne 1916), 48.

9 Crandall, Treaties 1916 (n. 8), 84.

10 Dakota S. Rudesill, ‘Coming to Terms with Secret Law’, Harvard National Security Journal 7 (2015), 241–390, 255.

11 us, An Act to provide for the publication of the laws of the United States, and for other purposes, 20 April 1818, sec. 4, us Congress, Statutes at Large 3, 439.

12 us Congress, Statutes at Large 7.

13 Ibid., 8.

14 Franz von Holzendorff, ‘Zur neusten Völkerrechtsliteratur’, Critische Vierteljahrschrift für Gesetzgebung und Rechtswissenschaft (1875), 325–374, 346.

15 As noted by G. Rolin-Jaequemyns, ‘L’Institut de droit international devant l’opinion publique en 1874–1875’, Revue de Droit International et de Législation Comparée 7 (1875), 291–306, 300; by Michal Rostworowski, ‘L’Union internationale pour la publication des traités’, Revue générale de droit international public 1 (1894), 135–154, 135–36; and by Ingrid Detter, Essays on the Law of Treaties (London: Sweet & Maxwell 1967), 36.

16 Voeu concernant la publication des traités (11 septembre 1885, Session de Bruxelles), in Hans Wehberg (ed.), Institut de droit international, Tableau général des résolutions (1873–1956) (Basel: Editions juridiques et sociologiques 1957), 133–134.

17 Rostworowski, ‘L’Union internationale’ 1894 (n. 15), 137.

18 Voeu concernant la formation d’une Union internationale pour la publication des traités (12 septembre 1891, Session de Hambourg), in Wehberg, Institut de droit international 1957 (n. 16), 134.

19 Projet d’une convention concernant la création d’une Union internationale pour la publication des traités conclus par les Puissances qui y accéderont (7 septembre 1892, Session de Genève), in Wehberg, Institut de droit international 1957 (n. 16), 134.

20 Manley Hudson, ‘The Registration and Publication of Treaties’, American Journal of International Law 19 (1925), 273–292, 289–290.

21 Shabtai Rosenne, Developments in the Law of Treaties 1945–1986 (Cambridge: Cambridge University Press 1989), 355.

22 Mikael H. Lie/Halvdan Koht, ‘Parliamentary Control of Foreign Politics’, in Organisation Centrale pour une Paix durable, Recueil de Rapports sur les différents points du programme-minimum, deuxième partie (The Hague: Martinus Nijhoff 1916), 241–251, 250.

23 Full Report of the Proceedings of the International Workers’ Congress, London, July and August 1896 (London: Labour Leader 1896), 37.

24 Lie/Koht, ‘Parliamentary Control of Foreign Politics’ 1916 (n. 22), 245.

25 Dauzat, ‘La convention et les traités secrets’ 1912 (n. 5), 379.

26 Karl Marx, Secret Diplomatic History of the Eighteenth Century (London: Swan Sonnenschein & Co. 1899) (edited by Eleanor Marx Aveling).

27 Detter, Essays on the Law of Treaties 1967 (n. 15), 37. Rostworowski, ‘L’union internationale’ 1894 (n. 15), 135.

28 Lie/Koht, ‘Parliamentary Control of Foreign Politics’ 1916 (n. 22), 251.

29 Ed. Bernstein, ‘Die Parlamentarische Kontrolle der Auswärtigen Politik’, in Organisation Centrale pour une Paix Durable, Recueil de Rapports sur les différents points du programme-minimum, deuxième partie 1916 (n. 22), 209–228, 209.

30 A. Ponsonby, ‘The Democratic Control of Foreign Affairs’, in Organisation Centrale pour une Paix Durable, Recueil de Rapports sur les différents points du programme-minimum, deuxième partie 1916 (n. 22), 252–261, 254.

31 Lie/Koht, ‘Parliamentary Control of Foreign Politics’ 1916 (n. 22), 243.

32 F. Seymour Cocks, The Secret Treaties and Understandings: Text of the Available Documents (London: Union of Democratic Control 1918).

33 Secret Treaty of Alliance between Germany and the Ottoman Empire, 2 August 1914, Art. 8, in J.A.S. Grenville/Bernard Wasserstein (eds.), The Major International Treaties of the Twentieth Century (London: Routledge 2001), 63.

34 Traité d’amitié et d’alliance entre l’Autriche-Hongrie et la Bulgarie (no date) September 1914, Art. 4, Bulletin de l’Institut Intermédiaire International 1 (1919), 389. Translated as Treaty of Alliance between Austria-Hungary and Bulgaria, in Clive Parry, Consolidated Treaty Series 220, (1914–1915), 290.

35 Convention secrète entre l’Autriche-Hongrie et la Bulgarie, 6 September 1915, Bulletin de l’Institut Intermédiaire International 1 (1919), 390. Translated as Secret Convention between Austria-Hungary and Bulgaria, in Clive Parry, Consolidated Treaty Series 221, (1915–1916), 139.

36 The Pact of London: The Text of the Alleged Treaty Between the Allies and Italy, of April 26, 1915, as Published in the Russian Secret Document Series, American Journal of International Law 13 (Supplement 1919), 436.

37 Sir Edward Grey to M. Cambon, 16 May 1916, Documents on British Foreign Policy, 1919–1939, 1st series (London: Her Majesty’s Stationery Office 1952), vol. 4, 245. French text as Correspondance relative à la reconnaissance et à la protection d’un Etat arabe en Syrie, in Nouveau recueil général de traités et autres actes relatifs aux rapports de droit international, 3rd series (1916), vol. 10, 350. French text also as Exchange of letters between France and Great Britain respecting the recognition and protection of an Arab state in Syria, 9 and 16 May 1916, in Clive Parry, Consolidated Treaty Series 221 (Oxford: Oxford University Press 1915–1916), 323.

38 Sir Edward Grey to Count Benckendorff, Russian Ambassador in London, 23 May 1916, Documents on British Foreign Policy 1919–1939, 1st series (London: Her Majesty’s Stationery Office 1952), vol. 4, 247.

39 Correspondence between Sir Henry McMahon and the Sherif Hussein of Mecca July 1915–March 1916, United Kingdom, Command Paper 5957, 8.

40 ‘Tainaia diplomatiia i vopros o Palestine’, Izvestiia, no. 232 (22 November 1917), 3.

41 George Kennan, Russia Leaves the War (Princeton: Princeton University Press 1956), 92–93.

42 Charles Seymour, The Intimate Papers of Colonel House (Boston: Houghton Mifflin 1928), vol. 3, 323.

43 The Los Angeles Times (25 November 1917), 11.

44 The Washington Post (25 November 1917), 1.

45 The New York Times (25 November 1917), 1.

46 Confidential Press Review, no. 13 (29 December 1917), 2.

47 ‘Russian Secret Documents: Arrangements with Western Powers’, The Times (26 November 1917), 7d.

48 ‘Russian Diplomacy: Lenin’s Peace Decree Ready for Issue: Treaties Consigned to “The Dustbin” ’, The Times (26 November 1917), 8b.

49 ‘Asiatic Turkey: Full Text of Allies’Agreement with ex-Tsar’, Manchester Guardian (19 January 1918), 5.

50 Taina diplomatii i tainye dogovory, Izvestiia, no. 221 (10 November 1917), 4. Reproduced in L. Trotskii, Sochineniia, vol. 3 1917, part 2 Ot Oktiabria do Bresta (Moscow: State Publishing House 1925), 164. In English as Statement by Trotsky on the Publication of the Secret Treaties, in Jane Degras (ed.), Soviet Documents on Foreign Policy (London: Oxford University Press 1951), vol. 1: 1917–1924, 8–9; and in Cocks, The Secret Treaties and Understandings 1918 (n. 32), 11.

51 E.H. Carr, The Bolshevik Revolution 1917–1923 (London: Macmillan 1951), vol. 1, 427–428.

52 Kennan, Russia Leaves the War 1956 (n. 41), 96.

53 ‘Taina diplomatii i tainye dogovory’, Izvestiia, no. 221 (10 November 1917), 4.

54 Arnold McNair, The Law of Treaties (Oxford: Clarendon Press 1961), 179.

55 Charles Rousseau, Principes généraux du droit international public (Paris: A. Pedone 1944), vol. 1, 303.

56 Hudson, ‘The Registration and Publication of Treaties’ 1925 (n. 20), 273.

57 John Thompson, Russia, Bolshevism, and the Versailles Peace (Princeton: Princeton University Press 1966), 14.

58 Supreme Court of Idaho, State v. Dingman, Idaho Reports 37, 253; also Pacific Reporter 219, 760 (1923).

59 Robert Murray, Red Scare: A Study in National Hysteria, 1919–1920 (New York: McGraw Hill 1964), 125–30.

60 Paul Johnson, Modern Times: The World from the Twenties to the Nineties (New York: Harper Collins 1991), 22.

61 McNair, The Law of Treaties 1961 (n. 54), 179.

62 President Wilson’s State Papers and Addresses (New York: George H. Doran 1918), 468–470.

63 David Hunter Miller, The Drafting of the Covenant (New York: G. P. Putnam’s Sons 1928), vol. 1, 19, n. 1.

64 Charles Neu, Colonel House: A Biography of Woodrow Wilson’s Silent Partner (Oxford: Oxford University Press 2015), 332.

65 Seymour, The Intimate Papers of Colonel House 1928 (n. 42), 330–331.

66 Susanne Miller/Heinrich Potthoff, A History of German Social Democracy from 1848 to the Present (New York: St. Martin’s Press 1986), 65.

67 Chris Harman, The Lost Revolution: Germany 1918 to 1923 (London: Bookmarks 1982), 42–46. Frederick Schuman, Soviet Politics at Home and Abroad (New York: A.A. Knopf 1946), 172.

68 Thompson, Russia, Bolshevism, and the Versailles Peace 1966 (n. 57), 13.

69 Constitution of the International Labour Organization, in Treaty of Peace with Germany (Treaty of Versailles), 28 June 1919, part 13, us Congress, Statutes at Large 49, 2713.

70 Louis Henkin, ‘International Law: Politics, Values and Functions’, Hague Academy of International Law, Recueil des cours 216 (1989, part 4), 212.

71 Cocks, The Secret Treaties and Understandings 1918 (n. 32), 47.

72 Note, Documents on British Foreign Policy 1919–1939, 1st series (London: Her Majesty’s Stationery Office 1952), vol. 4, 251.

73 Council of Four: Minutes of Meetings March 20 to May 24, 1919: Notes of a Conference Held in the Prime Minister’s Flat at 23 Rue Nitot, Paris, on Thursday, March 20, 1919, at 3 p.m., Foreign Relations of the United States: Paris Peace Conference 1919 (Government Printing Office: Washington 1946), vol. 5, 9–10.

74 League of Nations, Covenant, Art. 22.

75 British Secretary’s Notes of a Meeting of the Supreme Council, held at the Villa Devachan, San Remo, on Sunday, 25 April 1920, at 11 a.m., Documents on British Foreign Policy 1919–1939, 1st series (London: Her Majesty’s Stationery Office 1958), vol. 8, 176–177.

76 Miller, The Drafting of the Covenant 1928 (n. 63), vol. 1, 19, 29, 33, 78; and ibid., vol. 2, 92.

77 Anthony Aust, Modern Treaty Law and Practice (Cambridge: Cambridge University Press 2013), 297.

78 League of Nations, Covenant, Art. 18.

79 Hudson, ‘The Registration and Publication of Treaties’ 1925 (n. 20), 275–276.

80 The Registration and Publication of Treaties as Prescribed under Article 18 of the Covenant of the League of Nations, Memorandum approved by the Council of the League of Nations, meeting in Rome, on 19 May 1920, League of Nations Treaty Series, vol. 1, 8.

81 Hudson, ‘The Registration and Publication of Treaties’ 1925 (n. 20), 281, quoting Minutes of the Twelfth Session of the Council, 5.

82 Hudson, ‘The Registration and Publication of Treaties’ 1925 (n. 20), 282.

83 Clive Parry, ‘Legislatures and Secrecy’, Harvard Law Review 67 (1954), 737–785, 739.

84 Jean Ray, Commentaire du Pacte de la Société des Nations selon la politique et la jurisprudence des organes de la Société (Paris: Librairie du Recueil Sirey 1930), 550.

85 Hudson, ‘The Registration and Publication of Treaties’ 1925 (n. 20), 285–286.

86 Bruno Simma/Daniel-Erasmus Khan/Georg Nolte/Andreas Paulus, The Charter of the United Nations: A Commentary (Oxford: Oxford University Press 2012), vol. 2, 2091.

87 Ray, Commentaire du Pacte de la Société des Nations 1930 (n. 84), 552.

88 Leland Goodrich/Edvard Hambro/Anne Patricia Simons, Charter of the United Nations: Commentary and Documents (New York: Columbia University Press 1969), 610.

89 Hans Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (New York: Praeger 1964), 722.

90 Report of Rapporteur of Committee iv/2, uncio Doc. 933, iv/2/42 (2), in Documents of the United Nations Conference on International Organization San Francisco, 1945, vol. 13, 703, 706. See also Kelsen, The Law of the United Nations 1964 (n. 89), 697.

91 United Nations, General Assembly, Resolution 23, a/res/23(i), 10 February 1946.

92 United Nations, General Assembly, Resolution 97, a/res/97(i), 14 December 1946.

93 Note by the Secretariat, Registration and Publication of Treaties and International Agreements: Regulations to Give Effect to Article 102 of the Charter of the United Nations, 76 unts xviii.

94 Mala Tabory, ‘Recent Developments in United Nations Registration and Publication Practices’, American Journal of International Law 76 (1982), 352–353.

95 United Nations, General Assembly, Resolution 33/141, a/res/33/141A–B, 19 December 1978.

96 United Nations, General Assembly, Reports of the International Law Commission on the second part of its seventeenth session 3–28 January 1966 and on its eighteenth session 4 May–19 July 1966, Supplement No. 9, a/6309/Rev.1, 1966, 100.

97 Note by the Secretariat, Registration and Publication of Treaties (n. 93), Art. 1(3).

98 United Nations, General Assembly, Reports of the International Law Commission 1978 (n. 95), Comments by Governments, 175–176.

99 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 unts 331, Art. 80.

100 Oliver Corten/Pierre Klein (eds.), The Vienna Convention on the Law of Treaties: A Commentary (Oxford: Oxford University Press 2011), vol. 2, 1800.

101 Simma/Khan/Nolte/Paulus, The Charter of the United Nations 2012 (n. 86), 2107–2109. D.N. Hutchinson, ‘The Significance of the Registration or Non-registration of an International Agreement in Determining Whether It Is or Is Not a Treaty’, Current Legal Problems 46 (1993, Part 2), 257–290, 279. Rosalyn Higgins, The Development of International Law through the Political Organs of the United Nations (London: Oxford University Press 1963), 335.

102 See, e.g., icj, Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Judgment of July 1, 1994 (Jurisdiction and Admissibility), icj Reports 1994, 122. And see McNair, The Law of Treaties 1961 (n. 54), 186–188.

103 McNair, The Law of Treaties 1961 (n. 54), 189. A. Broches and Shirley Boskey, ‘Theory and Practice of Treaty Registration’, Nederlands Tijdschrift voor Internationaal Recht 4 (1957), 277–300, 277–292.

104 Malgosia Fitzmaurice/Olufemi Elias, Contemporary Issues in the Law of Treaties (Utrecht: Eleven International Publishing 2005), 23.

105 Paul Reuter, Introduction to the Law of Treaties (London: Kegan Paul 1995), 71.

106 Richard Lillich, The Obligation to Register Treaties and Other International Agreements with the United Nations, American Journal of International Law 65 (1971), 771–773, 771.

107 Treaty of Nonaggression Between Germany and the Union of Soviet Socialist Republics, 23 August 1939, Arnold Toynbee (ed.), Documents on International Affairs 1 (London: Royal Institute of International Affairs 1951), 408.

108 Secret Additional Protocol (Germany-ussr), 23 August 1939, ibid., 409.

109 Stephen Smith, ‘How France Maintains Its Grip on Africa’, BBC Focus on Africa Magazine, 21 May 2010.

110 Avi Shlaim, ‘The Protocol of Sèvres, 1956: Anatomy of a War Plot’, International Affairs 73(2) (1997), 509–530, 530.

111 United Nations, Security Council, 749th meeting, s/pv.749, 30 October 1956.

112 McNair, The Law of Treaties 1961 (n. 54), 179..

  • 5

    Albert Dauzat, ‘La convention et les traités secrets’, Revue Politique et Parlementaire 72 (1912), 371–379, 373.

  • 10

    Dakota S. Rudesill, ‘Coming to Terms with Secret Law’, Harvard National Security Journal 7 (2015), 241–390, 255.

  • 13

    Ibid., 8.

  • 14

    Franz von Holzendorff, ‘Zur neusten Völkerrechtsliteratur’, Critische Vierteljahrschrift für Gesetzgebung und Rechtswissenschaft (1875), 325–374, 346.

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  • 15

    As noted by G. Rolin-Jaequemyns, ‘L’Institut de droit international devant l’opinion publique en 1874–1875’, Revue de Droit International et de Législation Comparée 7 (1875), 291–306, 300; by Michal Rostworowski, ‘L’Union internationale pour la publication des traités’, Revue générale de droit international public 1 (1894), 135–154, 135–36; and by Ingrid Detter, Essays on the Law of Treaties (London: Sweet & Maxwell 1967), 36.

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  • 20

    Manley Hudson, ‘The Registration and Publication of Treaties’, American Journal of International Law 19 (1925), 273–292, 289–290.

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  • 37

    Sir Edward Grey to M. Cambon, 16 May 1916, Documents on British Foreign Policy, 1919–1939, 1st series (London: Her Majesty’s Stationery Office 1952), vol. 4, 245. French text as Correspondance relative à la reconnaissance et à la protection d’un Etat arabe en Syrie, in Nouveau recueil général de traités et autres actes relatifs aux rapports de droit international, 3rd series (1916), vol. 10, 350. French text also as Exchange of letters between France and Great Britain respecting the recognition and protection of an Arab state in Syria, 9 and 16 May 1916, in Clive Parry, Consolidated Treaty Series 221 (Oxford: Oxford University Press 1915–1916), 323.

  • 83

    Clive Parry, ‘Legislatures and Secrecy’, Harvard Law Review 67 (1954), 737–785, 739.

  • 94

    Mala Tabory, ‘Recent Developments in United Nations Registration and Publication Practices’, American Journal of International Law 76 (1982), 352–353.

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  • 109

    Stephen Smith, ‘How France Maintains Its Grip on Africa’, BBC Focus on Africa Magazine, 21 May 2010.

  • 110

    Avi Shlaim, ‘The Protocol of Sèvres, 1956: Anatomy of a War Plot’, International Affairs 73(2) (1997), 509–530, 530.

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