Deeks: A (Qualified) Defense of Secret Agreements

Ashley Deeks (Univ. of Virginia - Law) has posted A (Qualified) Defense of Secret Agreements (Arizona State Law Journal, forthcoming). Here's the abstract:

Secret international agreements have a bad reputation. Ever since states misused secret agreements during World War I, commentators have condemned these agreements as pernicious and destabilizing to international peace and security. The concerns triggered by these agreements were so salient that states crafting the League of Nations Covenant and then the United Nations Charter included provisions intended to eliminate their use. Conventional wisdom holds that the Charter largely achieved this goal - that secret agreements are rare, and that we should celebrate this. But the story is wrong, descriptively and normatively. Secret international commitments are pervasive today, and they are not always problematic.

This article sets out to describe and defend — with certain qualifications — the use of secret commitments in contemporary practice, with a focus on those to which the United States is a party. Notwithstanding their opacity, these commitments perform a critical role in shaping legal and strategic interactions between the United States and other states. Further, the evidence belies the idea that states predominately resort to secrecy when they intend to violate international norms. Most of those commitments that have come to light are — counter-intuitively, perhaps — consistent with the U.N. Charter, and in some cases actually advance the Charter’s purposes.

Certain secret commitments remain troubling or deeply opaque, however, and so this article also identifies various existing dynamics in the U.S. system that might assuage concerns about the abuse of secret commitments and proposes procedural protections that all states might develop to minimize the democratic challenges posed by secret commitments. Further, a more complete understanding of secret commitments provides new insights into the literature on executive power and lawmaking, government secrecy, and compliance with international agreements. In particular, the fact that the secret commitments studied here largely respect the limits of international and domestic law sheds light on the debate about the extent to which the Executive is bound — and perceives itself to be bound — by law in the national security realm.