Well, it’s not exactly a secret treaty in the sense that yesterday, the news wires were abuzz about the fact that the United States, Iran and five other world powers concluded an agreement to implement Iran’s earlier November deal on its nuclear program. But, what’s being held back is the actual text of the deal. There’s not many details (the only story I found on this was here). Still, at this point it’s not clear whether or not yesterday’s implementing agreement is actually a treaty or just another political commitment like the deal last November? Assuming it is legally binding, it’s also unclear as to why the text is not being released? Is this just a temporary delay pending a good scrub by treaty lawyers of the final text and any language/translation issues? Or, is it that some of the implementation agreements’ contents are being treated as classified by one or more of the participants/parties such that they have no intention of ever releasing the text?
Now, as I’ve written in the past, there’s a tendency among students of international relations to assume that secret treaties died with Woodrow Wilson’s fourteen points of light speech and its admonition for “open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind.” That view was codified, first in Article 18 of the Treaty of Versailles, and later (in a looser form) in Article 102 of the U.N. Charter (requiring Member States to register and allow to be published ”[e]very treaty and every international agreement” they make with the understanding that unregistered treaties may not be invoked before any organ of the United Nations). But, as far as international law is concerned, reports of the extinction of secret treaties appear exaggerated. As D.N. Hutchinson noted here back in 1993, Article 102 is most often honored in the breach, and has little relevance today to determining the legal status of an agreement (the ICJ appears to agree given its holdings in the jurisdictional phase of Qatar v. Bahrain). Thus, I’m not terribly surprised by the idea that the text of the deal may be secret even if its existence is not (particularly given the ‘nuclear’ subject-matter). Moreover, I don’t think the fact that Iran and these other States concluded it without making the text publicly available will deny it the status of a treaty under international law.
A more important question may be, given the reality of some significant Congressional hostility to the deal, whether keeping its text secret will prove problematic under U.S. law or the domestic law of any of the other State participants? I can’t speak to the domestic law of other States, but on the U.S. front, I have my doubts. There are obvious questions as to what legal authority the United States has to conclude this implementation agreement (i.e. is it a sole executive agreement, or does the Obama Administration view some existing legislative authority as sufficient to treat it as a congressional-executive agreement?). Assuming legal authority to conclude an implementation agreement, however, there is statutory authority for it to be done in secret provided the Executive Branch follows the appropriate procedures under the 1972 Case-Zablocki Act:
The Secretary of State shall transmit to the Congress the text of any international agreement (including the text of any oral international agreement, which agreement shall be reduced to writing), other than a treaty, to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter. However, any such agreement the immediate public disclosure of which would, in the opinion of the President, be prejudicial to the national security of the United States shall not be so transmitted to the Congress but shall be transmitted to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives under an appropriate injunction of secrecy to be removed only upon due notice from the President. Any department or agency of the United States Government which enters into any international agreement on behalf of the United States shall transmit to the Department of State the text of such agreement not later than twenty days after such agreement has been signed. (emphasis added)
Simply put, U.S. law accepts and regulates secret treaties and other international agreements. Thus, I don’t think the fact of its secrecy will sway proponents (or opponents) of this deal one way or another. Even so, I’m curious to know more about the Iranian implementation agreement. Is it intended to be legally binding or a political commitment? And, if it’s a treaty, what’s the Executive Branch view as to the legal authority to conclude it short of getting new legislation or going to the Senate under Article II of the Constitution? I’d welcome comments from readers who know more details here than I do.
Hat Tip: Orde Kittrie