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The Substance of Secret Agreements and the Role of Government Lawyers

  • Ashley S. Deeks (a1)
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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.

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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.
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2 This essay focuses on the substance of U.S. secret agreements, because the United States is very likely overrepresented in the number of secret agreements it concludes and because an active U.S. press has produced more information about those agreements than about those of other states.

3 Ashley S. Deeks, A (Qualified) Defense of Secret Agreements, 49 Ariz. St. L.J. 714, 732–35 (2017).

4 Donaldson, supra note 1, at 615.

5 Deeks, supra note 3, at 761–66.

6 See Andrew Guzman, A Compliance-Based Theory of International Law, 90 Cal. L. Rev. 1823, 1830–36 (2001) (discussing range of theories about why states comply with international law).

7 Donaldson, supra note 1, at 622.

8 Id. at 625.

9 British Institute of International and Comparative Law, Conf. Report, The Role of Legal Advisers in International Law 2 (Feb. 26, 2015).

10 Donaldson, supra note 1, at 597.

11 For a discussion of legality in the executive branch as a product of “internalized norms driving individual Hartian actors to exercise restraint,” see Manik Suri, Reorienting the Principal-Agent Frame: Adoption the “Hartian” Assumption in Understanding and Shaping Legal Constraints on the Executive, 7 Harv. L. & Pol'y Rev. 443, 452 (2013).

12 Donaldson, supra note 1, at 578. See also id. at 612, 626.

14 Ashley S. Deeks, Intelligence Communities and International Law: A Comparative Approach, in, Comparative International Law 251, 264–65 (Anthea Roberts et al. eds., 2018).

15 Donaldson, supra note 1, at 577 (“Some [officials and reformists] came to doubt whether secrecy was always inimical, for example, to peaceful ordering.”). See generally Deeks, supra note 3, at 751–55.

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