The Substance of Secret Agreements and the Role of Government Lawyers
Megan Donaldson’s The Survival of the Secret Treaty: Publicity, Secrecy, and Legality in the International Order recounts the ways in which lawyers played an important but complicated role in governmental decisions about whether and when to register secret agreements. On the one hand, these lawyers urged their governments to comply with the League of Nations and UN Charter registration processes. On the other hand, these same lawyers used their drafting and interpretive skills to enable their governments to employ secrecy where necessary, while helping their clients minimize the fact and size of any legal violations that occurred. They thus urged legal compliance on the front end and reduced the extent of noncompliance on the back end.
These two roles for lawyers — urging legal compliance and minimizing the scope of legal violations — shed light on a paradox related to the substantive content of the underlying secret agreements. Many secret agreements that have come to light, particularly those to which the United States is a party, are consistent with international legal norms contained in the UN Charter. Why, if nations sought to keep some agreements secret, did they nevertheless avoid substantive violations of international law in those agreements? The answer is likely based in part on the role of lawyers: Just as lawyers played an important role in helping their states minimize outright procedural violations of international law during the treaty registration process, so too do lawyers seem likely to have played an important role in avoiding or minimizing such violations during the crafting of the underlying substantive commitments themselves.