Of unwritten secret treaties

An interesting issue brought up by that so-called “gentlemen’s agreement” is whether or not unwritten international agreements (i.e., verbal agreements between heads of States) are valid? Customary international law says yes. That is, at least from the perspective of the Philippines, assuming constitutional requirements are complied with.

The Vienna Convention on the Law of Treaties itself points out that while a “‘treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation” (Article 2), nevertheless, “international agreements not in written form, shall not affect: (a) the legal force of such agreements; (b) the application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention; (c) the application of the Conven-tion to the relations of States as between themselves under international agreements to which other subjects of international law are also parties” (Article 3).

As far as the Philippines is concerned, if the nature of the verbal agreement categorizes it as a treaty, then Senate concurrence is needed. Consequently, the Executive branch may likely need to endorse a written document embody-ing the verbal agreement to the Senate for the latter’s deliberation. Of course, verbal agreements come with certain disadvantages, particularly in relation to dispute settlement mechanisms.

Which leads then to the matter of secret agreements. Here, the points laid out by Megan Donaldson, Research Fellow in the History of International Law at King’s College, Cambridge, are relevant:

“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, non-publicized 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 (United Nations) 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.

“Consistent with the decentralized lawmaking process of international law, under both the UN Charter and the current law of treaties, nonregistration with the UN Secretariat does not affect the treaty’s validity. Under Article 102(2) of the UN Charter, the consequence of nonregistration (of treaties that must be registered) is that ‘[n]o party to any such treaty

or international agreement … may invoke that [unregistered] treaty or agreement before any organ of the [UN].’

“A state that does not register a particular treaty cannot benefit from the UN system, including ICJ [International Court of Justice] adjudication, in order to invoke responsibility for a breach of obligations contained in that unregistered treaty. However, the term ‘invoke’ in Article 102(2) of the UN Charter is unclear, and may include all or some of the following situations: (a) basing the ICJ’s jurisdiction on unregistered treaties; (b) permitting and engaging with claims concerning the application of (and a fortiori applying) unregistered treaties; and (c) taking into account unregistered treaties in order to interpret registered treaties. Inconclusiveness about the meaning of ‘invocation’ in this provision may be one reason why the ICJ has not thoroughly addressed whether and in which cases unregistered treaties may be referred to during ICJ proceedings or relied upon by the Court.” (“The Survival of the Secret Treaty: Publicity, Secrecy, and Legality in the International Order,” 111 AJIL 575, 2017).

The question of validity is important because it determines the level of liability of the public official entering into such agreements. A valid agreement presupposes an international obligation from the international law per-spective and here the “Anti-Graft and Corrupt Practices Act” (RA 3019) becomes relevant because a treaty (whether written or unwritten, secret or not) is ultimately a contract and it is a crime to “enter, on behalf of the Gov-ernment, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby.” This is regardless of the intentions of the public officer concerned; in other words, what is controlling is the effect such an agreement has on the country.

Thus, for “manifestly and grossly disadvantageous” contracts (and a treaty, such as a verbal international agreement, is essentially a contract), a punishment of imprisonment of up to 15 years, perpetual disqualification from public office, and confiscation in favor of the Government of any unexplained wealth manifestly out of proportion to his lawful income, awaits those officials that entered such.

The views expressed here are his own and not necessarily those of the institutions to which he belongs.

Jemy Gatdula read international law at the University of Cambridge. He is the dean of the Institute of Law of the University of Asia and the Pacific, and is a Philippine Judicial Academy lecturer for constitutional philosophy and jurisprudence.