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The “Injunction of Secrecy” with Respect to American Treaties

Published online by Cambridge University Press:  04 May 2017

Manley O. Hudson
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Extract

The following incident will explain the reason for the suggestions in this paper that treaties signed on behalf of the United States should be published, in some cases, before their ratification.

Type
Research Article
Information
American Journal of International Law , Volume 23 , Issue 2 , April 1929 , pp. 329 - 335
Copyright
Copyright ©American Society of International Law 1929

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References

1 38 Stat. 1645, Supplement to this JOUENAL, Vol. 6, p. 122.

2 41 La Propriété Industrielle, p. 221.

3 In Papers and Correspondence relative to the Conference of the International Union for the Protection of Industrial Property held at The Hague, November, 1925, pp. 105, 117.

4 British Treaty Series, No. 16, Cmd. 3167 (1928). The text of the convention published in this JOUENAL for January, 1929 (Vol. 23, Supplement, p. 21) is taken from the British Treaty Series.

5 When the advice and consent of the Senate is given, the injunction of secrecy is now invariably removed and the text of the treaty is published in the Congressional Record. As indicating the practice, see 70 Congressional Record, p. 2371 (January 26, 1929). When the Senate consented to the ratification of certain of the Bryan treaties on August 13, 1914, the fact did not appear in the Congressional Record at the time, but the record of the executive session was later published. 59 Congressional Record, p. 3693.

6 Senate Manual (1925), p. 38.

7 1 Senate Journal of Executive Proceedings, p. 361; Gilfry, Precedents in the Senate (1914), p. 423; Crandall, Treaties, Their Making and Enforcement (2d ed.), p. 84. The provision for removing the injunction of secrecy was added by the amendment of March 6, 1888.

8 17 Congressional Record, p. 77.

9 Gilfry, Precedents in the Senate (1914), p. 247.

10 See The Federalist (Ed. by Lodge, 1888), p. 469.

11 Gilfry, Precedents in the Senate, p. 248. By 1797 “it had become the usual custom to order treaties to be printed in confidence for the use of the Senate.” Hayden, The Senate and Treaties, 1789–1817 (1920), p. 107. Apparently no treaties were made between 1789 and 1794. Butler, The Treaty-Making Power (1902), p. 420.

12 This is the effect of what is now Rule 35 of the Standing Rules of the Senate.

13 1 Senate Journal of Executive Proceedings, p. 178.

14 Alexander Hamilton, quoted in Hayden, op. cit., p. 90.

15 For an account of the violation of the injunction of secrecy with reference to the Jay Treaty, see Hayden, op. cit., p 89.

16 In an interesting note on “Government By Secret Diplomacy,” Dean John H. Wigmore has recently stated that the Department of State “is not allowed by the Senate” to print or make public a duly signed treaty until after the Senate removes “the injunction of secrecy”. 23 Illinois Law Review (1929), p. 689. But it is submitted that the Senate has not power to forbid such action by the Executive.

17 Such a resolution must be adopted in executive session, according to a precedent followed on January 15, 1912, with reference to the arbitration treaty with Great Britain. See Gilfry, Precedents of the Senate, p. 253.

18 This is the present practice, but it seems to be recent in origin.

19 Foster refers to “the fisheries treaty of 1888” as having been “acted upon in open Senate.” John W. Foster, The Practice of Diplomacy (1906), p. 279. The text of this treaty had previously been published in Canada. 2 Butler, Treaty-Making Power (1902), p. 380.

20 Ray Stannard Baker, Woodrow Wilson and World Settlement, I, pp. 157–160.

21 58 Congressional Record, pp. 157 ff, 558–561.

22 Ibid., pp. 802–857.

23 Ibid., p. 799. See 70 Congressional Record, pp. 2754 ff.

24 See 17 Congressional Record, pp. 966, 1192, 2610, 6308; 70 id., p. 2607.

25 George, W. Norris, “Secrecy in the Senate,” The Nation, May 5, 1926 (Vol. 122, p. 498)Google Scholar. See, also, Dorman, B. Eaton, Secret Sessions of the Senate (1886).Google Scholar

26 70 Congressional Record, pp. 2603–2613.

27 In Article 18 of the Covenant of the League of Nations. See Manley O. Hudson, "Registration and Publication of Treaties," this Journal, Vol. 19, p. 273.

28 An “additional secret article” was added to the treaty with Mexico of February 2,1848. Cf, 3 Stat., 472; David Hunter Miller, Secret Statutes of the United States (1918). See also David Hunter Miller, My Diary at the Conference of Paris, Vol. 2, p. 337.

29 Of course there might be cases in which the government of the other party to the treaty would desire that the text be withheld from publication pending ratification.

30 In rare cases, the texts of international conventions are published by other departments of the government than the Department of State. Thus, the text of the Convention on the Protection of Literary and Artistic Works, signed at Rome, June 2, 1928, was published in the 1928 Report of the Register of Copyrights, by the copyright office of the Library of Congress.

31 On February 25, 1929, the injunction of secrecy was removed from the Slavery Convention signed at Geneva on September 25, 1926, when the Senate consented to accession to that convention. 70 Congressional Record, p. 4311. As the text of the convention has been public since September 25,1926, having been published by the League of Nations' Secretariat and by various other bodies, there is a touch of irony in this removal of the injunction of secrecy.

32 Rule 37, paragraph 3 of the Senate’s Standing Rules now reads: “All treaties concluded with Indian tribes shall be considered and acted upon by the Senate in its open or legislative session, unless the same shall be transmitted by the President to the Senate in confidence, in which case they shall be acted upon with closed doors.”