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Secret Treaties in International Law and the Faith of States in Decentralized Enforcement

  • Danae Azaria (a1)
Extract

The modern law of treaties applies regardless of whether a treaty is publicized. The secrecy of an international agreement does not affect its legal force, nonpublicized agreements may be used in interpreting a publicized treaty, and mere failure to comply with domestic requirements concerning publicity does not invalidate the treaty or a state's consent to be bound by it. Under the UN Charter, UN members may not invoke an unregistered treaty or international agreement before a UN organ, but the rules on state responsibility are not concerned with the secrecy or publicity of primary obligations. Injured states may resort to countermeasures for breaches of secret treaty obligations and can suspend compliance with secret treaty obligations as a countermeasure against the responsible state. States may also seek to enforce obligations in secret treaties by bringing claims in international courts and tribunals outside the UN system—and these courts and tribunals have proliferated.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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2 See, e.g., Ashley S. Deeks, A (Qualified) Defense of Secret Agreements, 49 Ariz. St. L.J. 713 (2017).

3 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331.

4 Aegean Sea Continental Shelf (Greece v. Turk.), 1978 ICJ Rep. 3, para. 96 (Dec. 19).

5 Id.

6 Case Concerning Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahr.), Jurisdiction and Admissibility, 1994 ICJ Rep. 112, para. 25 (July 1).

7 Maritime Delimitation in the Indian Ocean (Som. v. Kenya), Preliminary Objections para. 42 (Feb. 2, 2017).

8 Hoshinmaru” (Japan v. Russ.), Case No. 14, Judgment of Aug. 6, 2007, 9 ITLOS Rep. 18, para. 86; Delimitation of the Maritime Boundary in the Bay of Bengal (Bangl./Myan.), Judgment of Mar. 14, 2012, 12 ITLOS Rep. 4, paras. 92–93.

9 Case Concerning Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahr.), Jurisdiction and Admissibility, 1994 ICJ Rep. 112, para. 29 (July 1).

10 Id.

12 Kelvin Widdows, What is an Agreement in International Law?, 50 Brit. Y.B. Int'l L. 117, 143 (1979).

13 The MOU contained a provision establishing its entry into force upon signature, which seems to have been the key to the Court's reasoning. Maritime Delimitation in the Indian Ocean (Som. v. Kenya), Preliminary Objections para. 42 (Feb. 2, 2017).

14 However, it could be argued that in Qatar v. Bahrain the Court did not consider Bahrain's objection, because it considered irrelevant Qatar's late registration in the first place.

15 Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicar.), 2009 ICJ Rep. 213, para. 47 (July 13).

16 Int'l Law Comm'n, Text of the Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties Adopted by the Commission, Report of the International Law Commission, Sixty-eighth session (2 May-10 June and 4 July-12 August 2016), UN Doc. A/71/10, at 211–12, para. 31.

17 Vienna Convention on the Law of Treaties art. 31(2)(a), May 23, 1969, 1155 UNTS 331.

18 Vienna Convention on the Law of Treaties art. 46(2), May 23, 1969, 1155 UNTS 331 provides: “A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.”

19 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), 2002 ICJ Rep. 303, para. 265.

20 Id. at para. 266.

21 UN Charter art. 102(2) (emphasis added).

22 Jadhav Case (India v. Pak.), Verbatim Record of Oral Argument para. 66(b) (May 15, 2017).

23 The International Tribunal on the Law of the Sea pronounced that the unregistered Agreed Minutes were not an international agreement between Bangladesh and Myanmar delimiting their territorial sea (without addressing nonregistration). Delimitation of the Maritime Boundary in the Bay of Bengal (Bangl./Myan.), Judgment of Mar. 14, 2012, 12 ITLOS Rep. 4, para. 99.

24 Int'l Law Comm'n, Text of the Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries Thereto art. 22 and 49–53 (and accompanying Commentaries), 2001 Y.B. In'l L. Comm'n 31-143, UN Doc. A/CN.4/SER.A/2001/Add.1 (Part 2) (2007).

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