30

Up to early 20th century, secret treaties or secret protocols seemed to be common. For example:

  • The Russian-French alliance before WW I was partly based on a "a secret treaty in 1894"
  • The secret Treaty of London in which Britain, France and Russia offered Italy territories in exchange for joining World War I on the side of the Allies
  • The Soviet-German Molotov–Ribbentrop Pact included a secret protocol on the partition of Poland and other countries between the two powers' spheres of influence

How were these treaties ratified or made official if they were to be secret? Especially if some parties were democracies (e.g. Britain, France) where parliaments—which might include opposition parties—are expected to ratify treaties? Weren't it going to leak once hundreds of politicians knew about it?

If not ratified, how were they made official and enforceable? In countries where government can change hands, how does a government even know their treaty obligations made by previous governments of different political parties? How were they expected to honor the treaty?

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    Before 2010 the UK parliament had no official role in treaty ratification, though it could always remove a government whose actions it disapproved of. It had the power to amend domestic legislation to implement treaties (or not), but this is not necessary for alliances. Even after 2010, its general power over treaty ratification is limited – Henry Jun 12 '18 at 8:03
  • Was there any reason to ratify these treaties? Russia and Germany were effectively autocracies, England had no legal reason for ratification (@henry hattip). – Mark C. Wallace Jun 12 '18 at 10:21
33

There are some misconceptions about what ratification means. Though it is now common for treaties to be ratified by a legislature, that has never been essential to the ratification process.

In actuality, the reason for treaty ratification is that the negotiator doesn't always have the authority to bind the nation to a treaty. In most countries, historically, the Sovereign alone held that authority. Treaties were thus ratified when the Sovereigns approves of the terms. This can easily be done in secret, since there is no need to involve large numbers of people.

Traditionally, ratification signified the consent of the sovereign to a treaty negotiated by the sovereign's plenipotentiary, who might have no means of consulting the sovereign when negotiating in distant countries.

Grenville, John, and Bernard Wasserstein, eds. The Major International Treaties of the Twentieth Century: a history and guide with texts. Routledge, 2013.

In fact, treaty ratification remains a Royal Prerogative in the United Kingdom. Even today Parliament does not get to ratify British treaties, although as @Henry noted, HM Government is now legally required to lay most treaties before Parliament for 21 days. There was no such law in 1894 or 1915.

While I'm not familiar with French constitutional law, it seems that the same is true of France during this period. Under the Third Republic, in matters of foreign affairs the President apparently inherited much of the executive powers of previous French monarchs:

According to the Constitution of 1875, the president had the power to "dispose of the armed forces," to "negotiate and ratify treaties," and in case of emergency to "declare war" . . . the French Senate never developed its constitutionally privileged position to ratify treaties or to declare war analogous to the American Senate.

Hamilton, Richard F., and Holger H. Herwig. Decisions for War, 1914-1917. Cambridge University Press, 2004.

(Even with the United States, it is technically the President, not the Senate, who ratifies treaties by signing the instruments of ratification. The common misunderstanding stems from the fact that the former can only do so with the "advice and consent" of the latter.)

In the case of Nazi Germany and Stalinist Russia, the approval of Hitler and Stalin functionally ratifies a treaty, given their autocratic control over their respective countries.

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    It's worth pointing out that although treaty ratification is a Royal Prerogative, that doesn't mean HM Queen Elizabeth II gets to decide whether to ratify a treaty or not. She must follow the advice of her advisors which means "the Government" (in the UK sense - "the Executive" in the USA sense). – Martin Bonner Jun 12 '18 at 15:29
  • This is a rather thorough answer. One thing I don't see is that, yeah, sometimes the sovereign did give their terms and did empower the diplomat(s) to conclude the (secret) treaty themselves. So long as the power was legally held and legally delegated, the treaty would be as legitimate and binding as any international agreement ever can be. – lly Jun 12 '18 at 17:38
  • A second thing is the broadness of 'that has never been essential to the ratification process'... Er, at least in the United States, it has been since at least the ratification of the current Constitution. (Secret treaties remain nominally possible via legislative cabals, but in practice partisan politics and the free press would leak the terms as soon as one side saw a political advantage in it.) – lly Jun 12 '18 at 17:40
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    @lly However, the United States has often gotten around the need for ratification by calling an agreement something other than a “treaty.” For example, neither President Trump’s recent declaration with North Korea, President Obama’s nuclear-inspections agreement with Iran nor President George W. Bush’s status-of-forces agreement with Iraq were treaties ratified by the Senate; they were all “executive agreements.” Before that, President Clinton passed NAFTA as a bill requiring only majority approval in both houses, rather than a supermajority in the Senate. – Davislor Jun 12 '18 at 20:06
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    IIRC, all foreign policy in the UK is still the prerogative of the Crown - in practice, of the Government in power. Technically, Teresa May could declare war on the USA without consulting Parliament. – TheHonRose Jun 29 '18 at 9:43
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They high command is the only one who knows about them. They become official but not public. I wonder how many there have been we don't even know about. Then they make up some reason. In the poland case it was "to supress rebel activit and to deescalate" or smth like that

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    Sources would improve this answer – Mark C. Wallace Jun 12 '18 at 10:21
  • @MarkC.Wallace source: my brain. It's stuff I know and looking for sources would take me as long as op if he was looking for the solution – Josef Jun 12 '18 at 10:23
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    We prefer answers with sources; it is one of the differences between the science of history, and the pub discussion. – Mark C. Wallace Jun 12 '18 at 10:54
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    @Josef Sure, everything should be taken with some amount of salt. However, "This appears in this list of published books by respected historians, political scientists etc." is much more convincing than "Some anonymous guy on the internet claims he knows this stuff." – David Richerby Jun 12 '18 at 13:00
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    I think the only way that "I know stuff" can be a valid argument is if it's prefaced by something along the lines of "I'm John Doe, author of multiple peer-reviewed papers and several books on the topic. Here is a summary of my research." – Thunderforge Jun 12 '18 at 19:15

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