Transparency In International Law 1107021383, 9781107021389

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TRANSPARENCY IN INTERNATIONAL LAW

While its importance in domestic law has long been acknowledged, transparency has until now remained largely unexplored in international law. This study of transparency issues in key areas such as international economic law, environmental law, human rights law and humanitarian law brings together new and important insights on this pressing issue. Contributors explore the framing and content of transparency in their respective fields with regard to proceedings, institutions, law-making processes and legal culture, and a selection of cross-cutting essays completes the study by examining transparency in international law-making and adjudication. andrea bianchi is Professor of International Law at the Graduate Institute of International and Development Studies, Geneva, Switzerland. anne peters is Director at the Max-Planck-Institute for Comparative Public Law and Public International Law, Heidelberg, Germany and Professor of International Law and Constitutional Law at the University of Basel, Switzerland.

TRANSPARENCY IN INTERNATIONAL LAW ANDREA BIANCHI and ANNE PETERS

University Printing House, Cambridge CB2 8BS, United Kingdom Published in the United States of America by Cambridge University Press, New York Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107021389 © Cambridge University Press 2013 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2013 Printed and bound in the United Kingdom by the MPG Books Group A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data Transparency in international law / edited by Andrea Bianchi and Anne Peters. pages cm ISBN 978-1-107-02138-9 1. Government liability (International law) 2. Transparency in government – Law and legislation. 3. International economic relations. 4. Freedom of information I. Bianchi, Andrea, editor of compilation. II. Peters, Anne C., editor of compilation. KZ4080.T73 2013 343.07–dc23 2013007950 ISBN 978-1-107-02138-9 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

CONTENTS

List of Tables viii List of Figures ix List of Contributors Preface xiii List of Abbreviations 1

x xvi

On Power and Illusion: The Concept of Transparency in International Law 1 andrea bianchi

part i 2

21

International Environmental Law

Transparency and International Environmental Institutions 23 jut t a b r u n n  e a n d e l l e n h e y

3

Global or European Only? International Law on Transparency in Environmental Matters for Members of the Public 49 jonas ebbesson

part ii 4

International Economic Law

75

Transparency in International Financial Institutions

77

l u i s m ig u e l h in oj os a m a r t i´n e z

5

Institutional Transparency in the WTO

112

pa n a g i ot i s d e l im a ts i s

6

Transparency in International Investment Law: The Good, the Bad and the Murky 142 jul ie a . m au pi n

v

vi

contents

7

Transparency and Exchange of Information in International Taxation 172 carlo garbarino and sebastiano garufi

8

Transparency and Intellectual Property Protection in International Law 197 t h o m a s c o t t i e r a n d m i c h e l a n ge l o t em m e r m a n

part iii 9

221

International Human Rights Law

The Human Right to Information and Transparency 223 jonathan klaaren

10

Transparency at Home: How Well do Governments Share Human Rights Information with Citizens? 239 c o s e t t e cr e a m e r a n d b e t h a . s i m m o n s

part iv 11

269

International Health Law

Institutional Transparency in Global Health Law-making: The World Health Organization and the Implementation of the International Health Regulations 271 e m i ly a . br u e m m e r a n d a ll yn l. ta y lo r

part v 12

295

International Humanitarian Law

Behind the Flag of Dunant: Secrecy and the Compliance Mission of the International Committee of the Red Cross

297

steven r. ratner

13

How Much Secrecy Does Warfare Need?

321

o r n a b e n - n a f t a l i a n d r o y p e l ed

part vi 14

International Peace and Security Law

Transparency in the Security Council

367

antonios tzanakopoulos

15

Transparency as a Cornerstone of Disarmament and Non-proliferation Regimes 392 mirko sossai

365

vii

contents

part vii 16

Cross-cutting Issues

417

Transparency in International Law-making

419

a l a n b o y l e a n d k a s e y m c c a ll -s m it h

17

Transparency in International Adjudication

436

t h o r e n e u m a n n a n d br u n o s i m m a

18

Transparency and Business in International Law: Governance Between Norm and Technique 477 l a r r y ca t  b a c ke r

19

Power and the Public: The Nature and Effects of Formal Transparency Policies in Global Governance Institutions 502 megan donaldson and benedict kingsbury

20

Towards Transparency as a Global Norm a n n e p e t er s

Index

608

534

TABLES

Table 10.1 National Human Rights Institutions (NHRIs) and NHRIs with Working Websites, by Region 251 Table 10.2 NHRIs and Transparency: Correlates of a Working Website 252 Table 10.3 Transparency with Respect to International Human Rights Law 255 Table 10.4 Transparency with Respect to Domestic Human Rights Law 257 Table 10.5 Correlates of Legal Transparency 260 Table 10.6 Is Transparency Correlated with Better Rights Practices? 264 Table 19.1 Existence of Publicly Available Transparency Policies in Selected Global Governance Institutions (as of April 2013) 510 Table 19.2 Formal Characteristics of Selected Transparency Policies (as of April 2013) 513

viii

FIGURES

Figure 10.1 Number of National Human Rights Institutions Worldwide, by Region 246 Figure 10.2 NHRI E-mail Responsiveness, by Country’s Income Level 262

ix

CONTRIBUTORS

larry cat backer is the W. Richard and Mary Eshelman Faculty Scholar and Professor of Law and International Affairs at The Pennsylvania State University. orna ben-naftali is the Emile Zola Chair for Human Rights at the Haim Striks School of Law, College of Management Academic Studies, Rishon LeZion. andrea bianchi (editor) is Professor of International Law at the Graduate Institute of International and Development Studies in Geneva. alan boyle is Professor of Public International Law at the University of Edinburgh. emily bruemmer is a JD graduate of Georgetown University Law Center, Washington DC. jutta brunne is Professor of Law and Metcalf Chair in Environmental Law at the Faculty of Law, University of Toronto. thomas cottier is Professor of European and International Economic Law at the University of Bern and Managing Director of the World Trade Institute in Bern. cosette creamer is a JD graduate of Harvard Law School and a PhD candidate at the Department of Government, Harvard University, Cambridge. panagiotis delimatsis is Professor of European and International Trade Law at Tilburg University and Director of the Tilburg Law and Economics Center (TILEC). megan donaldson is a JSD candidate and an Institute Fellow at the Institute for International Law and Justice, New York University School of Law. x

list of contributors

xi

jonas ebbesson is Professor of Environmental Law at Stockholm University and Director of the Stockholm Environmental Law and Policy Centre. He is currently the Chairperson of the Aarhus Convention Compliance Committee. carlo garbarino is Professor of Taxation at Bocconi University, Milan, and Global Visiting Professor at New York University. sebastiano garufi is a researcher at Bocconi University, Milan. ellen hey is Professor of Public International Law at the Erasmus School of Law in Rotterdam and was recently an Ingram Visiting Fellow at the Faculty of Law of the University of New South Wales in Sydney. luis miguel hinojosa martnez is Professor of European and International Law at Granada University. benedict kingsbury is the Murry and Ida Becker Professor of Law and Director of the Institute for International Law and Justice at New York University, and Visiting Professor at the University of Utah. jonathan klaaren is Professor of Law and former Dean of the School of Law of the University of the Witwatersrand, Johannesburg. julie maupin is a Lecturing Fellow in International Law and a Fellow at the Center for International and Comparative Law at Duke University School of Law, Durham. kasey m c call-smith is an occasional lecturer and tutor in Public International Law at the University of Edinburgh. thore neumann is a PhD candidate at the University of Basel, Switzerland. roy peled is an associate-in-law at the Columbia Law School and a JSD candidate at the Tel-Aviv University Buchman Faculty of Law. anne peters (editor) is Director at the Max-Planck-Institute for Comparative Public Law and Public International Law, Heidelberg, Germany and Professor of International Law and Constitutional Law at the University of Basel, Switzerland. steven r. ratner is the Bruno Simma Collegiate Professor of Law at the University of Michigan Law School, Ann Arbor.

xii

list of contributors

bruno simma is a Judge at the Iran–United States Claims Tribunal at The Hague. He is also a Professor of Law at the University of Michigan Law School in Ann Arbor, USA. From 2003 to 2012 he served as a Judge at the International Court of Justice. beth a. simmons is the Clarence Dillon Professor of International Affairs at Harvard University, Cambridge. mirko sossai is a Research Fellow at the Faculty of Law, University of Rome III. allyn taylor is a Visiting Professor of Law at Georgetown University, Washington DC. michelangelo temmerman is a Lecturer in Intellectual Property at the University of Bern and a Senior Research Fellow at the National Centre for Competence in Research on Trade Regulation, Bern. antonios tzanakopoulos is a University Lecturer in Public International Law at the University of Oxford and a Fellow of St Anne’s College.

PREFACE

Some joint academic projects originate from, and thrive on, long-established professional partnerships and scientific affinities. Others are far more casual and spontaneous. Happenstance definitely plays a role in the latter. The idea of doing a research project together came to us while walking to a restaurant in the streets of Washington DC on a mild evening in January 2008. The Joint Leadership Retreat (what a pompous name in retrospect!) between the American and the European Societies of International Law provided both the setting and the occasion for the conversation and the walk. Anne put the topic of transparency forward, and she had a doctoral student working on the topic. To strike a deal on a scientific project in a few minutes must be fairly rare in the profession! And yet this is precisely what happened that evening in Washington DC. Upon our return to Switzerland, we set out to apply for a research grant. I suppose it was at this stage, when we had to prepare the research project, that we realized the complexity of the task. Transparency is not a distinctly legal concept and its contours are rather blurred. It means different things to different people and it is used in highly heterogeneous contexts. Most of the time it is mentioned in relation to legitimacy, accountability and democratic governance. We decided to give the contributors a wide measure of discretion as regards the way in which they would use transparency. Rather than coercing their thoughts and analytical frame by providing a definition, we preferred to wait for the result of their inductive analysis. The way in which the contributors deal with transparency – we thought – might shed light on the understanding of transparency in the profession. Along similar lines of reasoning, we decided to structure the book on the basis of subject areas. We thought that exploring what role transparency plays in the different domains of international law might better contribute to the understanding of its potential as a general concept or norm, and of its current relevance to the international legal system. The realization, early on in the project, that transparency could accomplish xiii

xiv

preface

very different functions, depending on the area in which it applies or is invoked, recomforted us in our initial choice. After all, as Pierre Bourdieu used to say, it is one of the most serious epistemological errors to ‘put the scholar inside the machine’ by interpreting the conduct of social agents in conformity with the scholar’s predetermined beliefs and intellectual constructions. We tried to be eclectic in selecting the research team. We sought a blend of senior and less senior colleagues, of expertise and sensitivity to this particular strand of research. It never is an easy job to get colleagues to work on an edited volume, let alone on such a difficult and relatively new (to international lawyers) topic. In January 2012 we gathered all the contributors in Thun, a picturesque village on the lake bearing the same name, embedded within the northern periphery of the Swiss Alps. The two-day book authors’ retreat proved to be an invaluable intellectual challenge and a most pleasant human experience. Everyone seemed to be well at ease in the informal and cosy setting that the hotel facilities provided, and I trust that the fruitful exchanges we had there greatly contributed to shaping up the final versions of the papers eventually submitted by the authors. It may seem odd to the outsider, but academic conferences and workshops are not necessarily conducive to intellectual exchanges. We take pride in saying that ours definitely was. Many thanks also to the various persons who were involved in the research project at different stages and in different capacities. In particular we are grateful to Lilian Buchmann, Delphine Hayim, Claudia Jeker, Adil Hasan Khan, Julie Maupin, Lukas Musumeci, Thore Neumann, Julia Otten, Melanie Wahl and Fouad Zarbiev. It is only fair to specify that among all these friends and collaborators to whom we are grateful, Lukas Musumeci and Julia Otten – who have been our respective assistants for most of this research project – deserve special mention. It is Lukas and Julia who ensured the organization and smooth functioning of the retreat and carefully attended to all the other academic and administrative duties that a big project such as this inevitably entails. We are indebted to a number of institutions that have funded the project. First, and foremost, our gratitude goes to the Swiss National Fund for Research (SNF, Fonds national Suisse de la recherche scientifique) that sponsored the research project over two and a half years. It is on this basis of generous funding that we have been able to carry out the project. Thanks to all the officers of the SNF who have dealt with the project. The SNF also contributed to the book authors’ retreat in Thun, together with the Freiwillige Akademische Gesellschaft Basel and the

preface

xv

Stiftung zur Förderung der rechtlichen und wirtschaftlichen Forschung an der Universität Basel. However, our seminar in Thun would not have been possible without the financial support of the Swiss Confederation Ministry of Foreign Affairs. Our heartfelt thanks to Ambassador Valentin Zellweger and to Ambassador Jürg Lindenmann, respectively Director and Deputy Director of the International Law Directorate at the Ministry. We also had the pleasure of having Jürg Lindenmann open the workshop in Thun. He did so with his usual elegance and wit, setting the tune for the ensuing debate. We are both impressed at the way in which the Swiss Foreign Ministry’s staff are always willing to collaborate with academia. It is very enriching for us and we hope that this is mutual. As non-Swiss nationals we are even more grateful for such an open-minded attitude. Many thanks also to the only real ‘intruder’ in the Thun meeting: our colleague and friend Andrew Clapham, who kindly agreed to preside over two sessions and joined us in the concluding round table. He brought to the meeting his scholarship, his expertise and his friendship, as he agreed to celebrate his birthday with us in Thun. Our gratitude goes also to the Wissenschaftskolleg zu Berlin, a wonderful, intellectually stimulating institution that hosted Anne as a fellow and inspired her concluding chapter. Finally, thanks to the anonymous referees of Cambridge University Press. The referees unconditionally praised the project and encouraged publication. This certainly was a great boost to our morale and it soothed, at least partly, the anxiety that always accompanies the researcher engaged in a project. It is always the reader that has the final word on a book, even when the book is addressed to an academic and professional audience. We can only say that we found researching and writing on transparency incredibly stimulating and we hope that readers will find the insights provided in this collection of essays useful for what they do. Most importantly, we hope that this book will provide an opportunity for thinking productively and creatively about the role of transparency in international law.

ABBREVIATIONS

ACCC ACP ACTA ADB AfDB AIC AID All ER API ASEAN BIT(s) BMJ BP BTWC Caricom CBD CCD CCPR CDC CEO CETS CFI CIA Cir. CITES CoE COP CSCE CSR CWC DG Trade

Aarhus Convention Compliance Committee African, Caribbean and Pacific Group of States Anti-Counterfeiting Agreement Asian Development Bank African Development Bank Access to Information Committee (World Bank context) Access to Information Decision (World Bank context) All England Law Reports Additional Protocol I to the Geneva Conventions Association of Southeast Asian Nations Bilateral Investment Treaty(-ies) British Medical Journal British Petroleum Biological and Toxin Weapons Convention Caribbean Community Convention on Biological Diversity Convention to Combat Desertification International Covenant on Civil and Political Rights Centers for Disease Control Chief Executive Officer Council of Europe Treaty Series Court of First Instance Central Intelligence Agency Circuit Convention on International Trade in Endangered Species of Wild Fauna and Flora Council of Europe Conferences of the Parties Conference on Security and Co-operation in Europe Corporate Social Responsibility Chemical Weapons Convention Directorate-General Trade

xvi

list of abbreviations DSB DSU EB EBRD ECHR ECJ ECtHR ECR ED EPO ETA EU FAO FCTC FLA FSB G-20 G-7 GATT GEF GRI GTI HSVAR IACtHR IAEA IBRD ICANN ICAO ICC ICJ ICRC ICSID ICTR ICTY IDA IDB IEI(s) IEO IFAD IFC IGO

dispute settlement body Dispute Settlement Understanding Executive Board European Bank for Reconstruction and Development European Convention on Human Rights European Court of Justice European Court of Human Rights European Court Reports Executive Director European Patent Organization Euskadi Ta Askatasuna European Union Food and Agriculture Organization Framework Convention on Tobacco Control Fair Labor Association Financial Stability Board Group of Twenty Group of Seven General Agreement on Tariffs and Trade Global Environment Facility Global Reporting Initiative Global Transparency Initiative High Seas Vessel Authorization Record Inter-American Court of Human Rights International Atomic Energy Agency International Bank for Reconstruction and Development Internet Corporation for Assigned Names and Numbers International Civil Aviation Organization International Criminal Court, International Chamber of Commerce International Court of Justice International Committee of the Red Cross International Centre for Settlement of Investment Disputes International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia International Development Association Inter-American Development Bank International Environmental Institution(s) Independent Evaluation Office International Fund for Agricultural Development International Finance Corporation Intergovernmental Organization

xvii

xviii IHL IHR IISD ILO IMF IMO INF

ICPO-Interpol IPCC IPRs ISAF ISO ITC ITLOS ITU IWC LCIA LMOs LMO-FFPs MARPOL MEAs MIGA NAAEC NAFTA NGO(s) NHRI(s) NPT OAS ODAC OECD OGEMID OHCHR OIG OPCW OSCE PAHO Paris MOU

list of abbreviations International Humanitarian Law International Health Regulations International Institute for Sustainable Development International Labour Organization International Monetary Fund International Maritime Organization Treaty between the United States of America and the Union of Soviet Socialist Republics on the Elimination of Intermediaterange and Shorter-range Missiles International Criminal Police Organization Intergovernmental Panel on Climate Change intellectual property rights International Security Assistance Force in Afghanistan International Organization for Standardization International Trade Centre International Tribunal for the Law of the Sea International Telecommunication Union International Whaling Commission London Court of International Arbitration Living Modified Organisms Living Modified Organisms intended for direct use for Food, Feed, or Processing International Convention for the Prevention of Pollution from Ships Multilateral Environmental Agreements Multilateral Investment Guarantee Agency North American Agreement on Environmental Cooperation North American Free Trade Agreement Non-Governmental Organization(s) National Human Rights Institution(s) Treaty on the Non-Proliferation of Nuclear Weapons Organization of American States Open Democracy Advice Centre Organization for Economic Co-operation and Development Oil-gas-energy-mining-infrastructure Dispute Management Office of the High Commissioner for Human Rights Office of the Inspector-General (Global Fund to Fight AIDS, Tuberculosis and Malaria) Organization for the Prohibition of Chemical Weapons Organization for Security and Co-operation in Europe Pan American Health Organization Paris Memorandum of Understanding on Port State Control

list of abbreviations PHEIC PIC R2P RIAA SARS SCC SOMO START TEU TFEU TIEA(s) TRIPs UNCAC UNCDF UNCITRAL UNCTAD UNDP UNECE UNEP UNESCO UNFCCC UNFPA UNGC UN-HABITAT UNHCR UNHRC UNICEF UNIDO UNIFEM UNODC UNOPS UNRWA UNSCOM UNV UNWFP UNWTO UPU UPOV USC USPTO

xix

Public Health Emergency of International Concern Prior Informed Consent Responsibility to Protect Reports of International Arbitral Awards Severe Acute Respiratory Syndrome Stockholm Chamber of Commerce Stichting Onderzoek Multinationale Ondernemingen Strategic Arms Reduction Treaty Treaty on European Union Treaty on the Functioning of the European Union Tax Information Exchange Agreement(s) Agreement on Trade-Related Aspects of Intellectual Property Rights United Nations Convention Against Corruption United Nations Capital Development Fund United Nations Commission on International Trade Law United Nations Conference on Trade and Development United Nations Development Programme United Nations Economic Commission of Europe United Nations Environment Programme United Nations Educational, Scientific and Cultural Organization United Nations Framework Convention on Climate Change United Nations Population Fund United Nations Global Compact United Nations Human Settlements Programme United Nations High Commissioner for Refugees United Nations Human Rights Council United Nations Children’s Fund United Nations Industrial Development Organization United Nations Development Fund for Women United Nations Office on Drugs and Crime United Nations Office for Project Services United Nations Relief and Works Agency for Palestine Refugees in the Near East United Nations Special Commission for Iraq United Nations Volunteers United Nations World Food Programme United Nations World Tourism Organization Universal Postal Union International Union for the Protection of New Varieties of Plants United States Code United States Patent and Trademarks Office

xx USTR VCLT WHA WHO WIPO WMO WTO

list of abbreviations United States Trade Representative Vienna Convention on the Law of Treaties World Health Assembly World Health Organization World Intellectual Property Organization World Meteorological Organization World Trade Organization

1 On Power and Illusion: The Concept of Transparency in International Law andrea bianchi*

1. Transparency as Culture Transparency has become one of the fundamentally distinctive traits of contemporary Western culture.1 It is recommended by psychologists to recover trust after infidelity; and it is increasingly imposed on banks and financial institutions. Non-transparent financial transactions, no matter how insignificant, by spouses may lead to a central banker’s resignation.2 Medical practice leans dangerously towards unconditional forms of transparency: you may be unceremoniously told that you are going to die just for the sake of transparency (particularly vis-à-vis the physician’s professional insurance!). Worldwide campaigns have been led in the name of transparency by not-so-transparent organizations, as was the case of WikiLeaks, against the abuse of power by States. Transparent portable phones present one of the most pressing research challenges for electronic gadget designers.3 We demand transparency of our partners, our colleagues, the city council, the government, international institutions and even the objects we use. Short of God, whose will and deeds are by definition inscrutable, * I would like to express my gratitude to Julia Otten for her invaluable research assistance, as well as for the many inspiring conversations we shared on the subject. 1 See, for example, Warren Bennis/Daniel Goleman/James O’Toole, Transparency: How Leaders Create a Culture of Candor (San Francisco: Jossey-Bass, 2008); and Suzanne J. Piotrowski, Transparency and Secrecy: A Reader Linking Literature and Contemporary Debate (Lanham: Lexington Books, 2010). 2 See Haig Simonian, ‘Swiss Central Bank Chief Quits’, Financial Times (10 January 2012), 1. 3 See, for example: Stuart Cunningham/Peter S. Excell, ‘e-Culture and m-Culture: The Way That Electronic, Computing and Mobile Devices Are Changing the Nature of Art, Design and Culture’, in John Dill et al. (eds.), Expanding the Frontiers of Visual Analytics and Visualization (London: Springer, 2012), 285–302.

1

2

andrea bianchi

transparency is demanded of everyone. Transparency epitomizes the prevailing mores in our society and becomes a standard of (political, moral and, occasionally, legal) judgement of people’s conduct. A narrative of transparency permeates our daily life. It is a deeply rooted belief. Transparency is all around us. As is also the case with human rights, it is almost impossible to find someone who would agree to say anything negative about transparency in public.4 No one would ever dare contest something that is universally perceived as a positive value. The unconditional virtue associated with transparency also explains the publication of this book. I have never before experienced such unfaltering enthusiasm for a book proposal. In fact, the publisher was so eager to go ahead with the project and the two anonymous peer reviewers (but why do they need to be anonymous in an era of transparency?) were so unusually positive and flattering about the project, that I thought to myself there must be something wrong. In contrast, the opposites of transparency, such as secrecy and confidentiality, have taken on a negative connotation. Although they remain paradigmatic narratives in some areas, overall they are largely considered as manifestations of power and, often, of its abuse. The simple truth is that we no longer see why one should be secretive about their business, whatever the latter is. All the more so if the activity in question concerns the administration of the public good. Not even in such areas as security and public order is public opinion particularly in favour of tolerating restrictions on transparency. The State secrets privilege that is often invoked in courtrooms to shield governmental officials against scrutiny in security-sensitive cases causes most people to frown.5 We are prepared to concede that to make available to the public at large (among whom there may well be some ill-intentioned individuals) the scientific findings of a group of scientists who have modified the 4

5

This is without prejudice to critical attempts to re-imagine the human rights doctrine: Costas Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century (Oxford/Portland: Hart Publishing, 2000). See, for instance, the public outcry caused by the invocation of the State secrets privilege in legal proceedings related to extraordinary renditions in the United States and Italy, respectively: US Court of Appeals, Arar v. Ashcroft, Decision of 2 November 2009, 585 F 3d 559 (2nd Cir. 2009) (en banc); and Tribunale Ordinario di Milano in composizione monocratica, Sezione IV Penale, Adler, Monica Courtney et al., Verdict of 4 November 2009, No. 12428/09, judgment filed on 1 February 2010, both cases concerning extraordinary renditions; and the recent decision concerning an FBI programme of surveillance on the civilian population: US Central District Court of California, Southern Division, Fazaga v. FBI, Decision of 14 August 2012, 2012 WL 3327092.

on power and il lusion

3

human-to-human transmissibility of the H5N1 avian flu virus and turned it into a potential weapon of mass destruction might present a few shortcomings.6 However, we do not hesitate in demanding more transparency from the way in which we are diagnosed as being mentally disturbed and treated by psychiatrists. The polemic preceding the publication of the latest edition of the Diagnostic and Statistical Manual of Mental Disorders attests to such growing demand.7 Overall, the world to which we aspire is a transparent one. The purpose of the following remarks is to call the wisdom of this aspiration into question by investigating a few of the dark sides of transparency and by showing that some of its promises may just be illusory. It goes without saying that in doing so I shall attempt to be as transparent as possible.

2. Transparency in International Law (so far) Transparency is not immediately associated with international law. The world of international diplomacy and high politics has long been depicted as secretive and enigmatic, far removed from the public’s eye. The shrewdness and reputation of politicians and diplomats was measured by their ability to act discretely, striking deals behind the scenes and avoiding public scrutiny. It would be inaccurate to state that those days are over. After all, secret treaties have not disappeared and, occasionally, important decisions are taken in a manner not dissimilar to a round of cups and balls. But the culture all around has changed. We do resent decisions by the Security Council or by the International Monetary Fund when these are perceived as biased or taken in a less than transparent fashion. We are still flabbergasted at a round of cups and balls but we no longer believe in magic. We know there is a trick behind it and we want to be able to work it out, possibly by looking it up on the internet. We are used to the availability of information and we take it for granted that our appetite for knowledge can always be satisfied. Whereas secrecy is 6

7

David P. Fidler, ‘Risky Research and Human Health: The Influenza H5N1 Research Controversy and International Law’, American Society on International Law: Insights 16 (2012). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders DSM-IV-TR Fourth Edition (Arlington: American Psychiatric Publishing, 4th edn, 2000). The fifth edition is expected to be published in March 2013. On the controversy, see Lisa Cosgrove/Sheldon Krimsky/Manisha Vijayaraghavan/Lisa Schneider, ‘Financial Ties Between DSM-IV Panel Members and the Pharmaceutical Industry’, Psychotherapy and Psychosomatics 75 (2006), 154–160; and Shankar Vedantam, ‘Patients’ Diversity Is Often Discounted’, Washington Post (26 June 2005), A10.

4

andrea bianchi

conveniently relegated to the inner layers of one’s own self − where the darkest sides of life are kept hidden from the intrusive outside world − we have come to expect, particularly from others, full disclosure and transparency of conduct, speech and thought. It is perhaps no wonder that similar expectations have arisen in respect of international law. These expectations for transparency are even more acute in light of the latter’s potential for epitomizing everyone’s desire for a better world. In recent decades, mostly due to the human rights movement and to the expectations raised by the international criminal justice system, international law has increasingly been perceived as a tool of redemption.8 It is often looked at as the ultimate remedy against the scourges of humanity: human rights abuses, environmental degradation, terrorism, and so on and so forth. Scholarly constructions aiming to reproduce (and enhance) domestic paradigms have considered transparency to be part and parcel of a principle of democratic governance9 the foundation of which in international law still appears as flimsy as a philanderer’s promise. What looked like an emerging right at a time when international cooperation was at its apex,10 before the tragic events of 9/11 came to shake it, has faded almost to the point of vanishing. Yet the language of transparency continues to be spoken by those whose unfalteringly optimistic view of international law cause them to see the emergence of a global administrative space11 or a process of

8

9

10

11

See, for instance, Martti Koskenniemi, ‘The Lady Doth Protest Too Much – Kosovo, and the Turn to Ethics in International Law’, Modern Law Review 65 (2002), 159–175, 172 referring to the discipline of international law that is ‘relearning the crusading spirit, and the civilizing mission’; see also David Kennedy, ‘The Disciplines of International Law and Policy’, Leiden Journal of International Law 12 (1999), 9–133, 93–101; and David Kennedy, ‘When Renewal Repeats: Thinking against the Box’, in Wendy Brown/Janet Halley (eds.), Left Legalism/Left Critique (Durham/London: Duke University Press, 2002), 371–419, 392–393. Devika Hovell, ‘The Deliberative Deficit: Transparency, Access to Information and UN Sanctions’, in Jeremy Farrall/Kim Rubenstein, Sanctions Accountability and Governance in a Globalized World (Cambridge University Press, 2009), 92–122, 113. See also Beate Rudolf, ‘Is “Good Governance” a Norm of International Law?’, in Pierre-Marie Dupuy et al. (eds.), Völkerrecht als Wertordnung: Festschrift für Christian Tomuschat (Kehl: Engel Verlag, 2006), 1007–1028. See Thomas M. Franck, ‘The Emerging Right to Democratic Governance’, American Journal of International Law 86 (1992), 46–91. Daniel C. Esty, ‘Good Governance at the Supranational Scale: Globalizing Administrative Law’, Yale Law Journal 115 (2005), 1490–1562, 1530–1531.

on power and il lusion

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democratization of the international community.12 In both strands of scholarship, transparency is associated with a public law paradigm that is transposed onto the international legal system to provide good governance and enhance its overall legitimacy and effectiveness. However, transparency as such is used sparingly and, almost invariably, in an accessory, secondary role. It is often subservient to other principles and/or values and rarely plays a prominent role in the international political agenda. If it were ever to compete for an Oscar, transparency would probably be nominated in the ‘best supporting actress’ category. Even in the context of the United Nations’ many initiatives to promote the rule of law, transparency is not an indispensable element, albeit occasionally quoted in relevant documents and resolutions.13 In all events, it constitutes just one part of a greater whole. In more traditional circles, transparency has little currency, if any at all. It has occasionally been qualified as a general principle of law, which would be applicable in certain specific areas such as international environmental law14 and international economic law.15 Admittedly, there have been some attempts to frame transparency within the traditional doctrine of sources. While transparency obligations can be incorporated into treaties, which at most may raise an issue of interpretation of the relevant text, no one has (so far) had the temerity to characterize transparency as a rule of customary international law. The most obvious reflex for international lawyers would be to characterize transparency as a ‘principle’ under article 38(1)(c) of the Statute of the International Court of Justice. As has been rightly pointed out, this qualification is not without its difficulties, given the problematic character of defining 12

13

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See, for example Antonio Cassese (ed.), Realizing Utopia: The Future of International Law (Oxford University Press, 2012), particularly section 1, 3–143; and Anne Peters, ‘Dual Democracy’, in Jan Klabbers/Anne Peters/Geir Ulfstein, The Constitutionalization of International Law (Oxford University Press, 2009), 263–341. Until recently hardly any reference was made to transparency in UNGA resolutions on The Rule of Law at the National and International Levels, adopted on a yearly basis by the UNGA. See: A/RES/64/116, 15 January 2010; A/RES/65/32, 10 January 2011; A/RES/ 66/102, 13 January 2012. However, express reference to transparency is made in UNGA, Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels, A/67/L.1, 19 September 2012, para. 25. Makane Moïse Mbengue/Mara Tignino, ‘Public Participation and Amicus Curiae in Water Disputes’, in Edith Brown Weiss et al. (eds.), Fresh Water and International Economic Law (Oxford University Press, 2005), 367–405. Carl-Sebastian Zoellner, ‘Transparency: An Analysis of an Evolving Fundamental Principle in International Economic Law’, Michigan Journal of International Law 27 (2006), 579–628.

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the precise content of such a principle,16 let alone the possibility of reproducing at international law the domestic law conditions that can make it operational at the domestic law level, most notably judicial enforcement. Caution is exercised on all sides. Transparency as practice, norm, rule or principle is generally seen as ‘developing’ or ‘emerging’. Whatever its nature, it is usually described as if it were in statu nascendi, a potential that has not yet turned into actuality. However, its righteousness and desirability is hardly ever called into question. Its advent is a matter of time, at least according to those who look at international law as a narrative of unhindered progress.17

3. Transparency as Concept The difficulty in determining its status against the background of the traditional sources of international law does not deprive transparency of an existence in its own right as a concept, as a mental representation of a general idea elaborated in one’s mind on the basis of experience and intuition. Normative concepts and prescriptions of a varied nature may exercise significant influence on international legal processes regardless of their formal status. Such concepts are often translated into law by means of ‘principles’, not in the traditional meaning of article 38(1)(c) of the Statute of the International Court of Justice, but rather in the sense of normative prescriptions of a general character. The ‘translation’ is compelled by the well-known hostility of the lawyerly world towards what positivists would call ‘extra-legal considerations’.18 Unless something is expressed in a form that is couched in legal terms, it has a slim chance of being accepted within the discipline. Hence the need to qualify as ‘principles’ those concepts that would otherwise have no standing in the world of legal imagery and representation.

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Hovell, ‘The Deliberative Deficit’ 2009 (n 9), 112–113. See Thomas Skouteris, The Notion of Progress in International Law Discourse (The Hague: Asser Press, 2010). Judge Spencer and Judge Fitzmaurice refer to ‘considerations of a non-juridical character’ in ICJ, South West Africa Case (Liberia and Ethiopia v. South Africa), Joint Dissenting Opinion of Judge Spencer and Fitzmaurice, Judgment of 21 December 1962, ICJ Reports 1963, 466. On how to distinguish ‘non-legal’ approaches from the so-called ‘traditional’ methodology, see Olivier Corten, Me´thodologie du droit international public, UBlire Re´fe´rences 8 (Brussels: Edition de l’Universite´ de Bruxelles, 2009).

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International legal scholarship has devoted little attention to the issue of normativity outside the traditional discourse on the doctrine of sources. In fact, the idea of the existence of concepts and/or values that find their roots in the societal body and contemporary culture is not novel. It is somewhat reminiscent of Roberto Ago’s notion of meta-legal principles of a general nature that would shape the content, interpretation and enforcement of international legal rules,19 a notion that has been more recently taken up and expanded upon by Antonio Cassese.20 Vaughan Lowe in turn has highlighted the existence of ‘interstitial norms’, which would operate in the interstices of primary rules in order to ensure that the legal system conforms with the contemporary ethos.21 Lowe’s theory has the merit of departing from the traditional doctrine of sources by providing new insights that clearly point to an increasing normative modularity in international law.22 It would be a naïvety of sorts to maintain that contemporary international law only accommodates in its normative structure binding and directly enforceable rules. Some normative prescriptions accomplish different tasks in specific areas; others perform a more systemic role. In many ways these concepts or norms – oftentimes couched in terms of principles – operate as permanent connectors between the law and the changing societal realities.23 They direct normative processes and the interpretation of legal prescriptions. Their legal relevance is self-evident, their qualification less so. Transparency is not just difficult to couch in legal terms. It is also difficult to grasp in terms of content. Not even the one NGO that is expressly devoted to transparency issues provides a general definition of transparency: Transparency International only defines transparency in 19 20

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Roberto Ago, Lezioni di diritto internazionale (Milan: Giuffrè, 1943), 65. Antonio Cassese, Diritto internazionale (a cura di Paola Gaeta) (Bologna: Il Mulino, 2006), 271–272; Antonio Cassese, International Law (Oxford University Press, 2nd edn, 2005), 46–48; and even more specifically Antonio Cassese, Diritto internazionale (a cura di Paola Gaeta) (Bologna: Il Mulino, 2003), 61. Vaughan Lowe, ‘The Politics of Law-making: Are the Method and Character of Norm Creation Changing?’, in Michael Byers (ed.), The Role of Law in International Politics: Essays in International Relations and International Law (Oxford University Press, 2000), 207–226. Andrea Bianchi, ‘Principi di diritto, modularità funzionale e relatività normativa: Il concetto di precauzione nel diritto internazionale’, in Andrea Bianchi/Marco Gestri (eds.), Il principio precauzionale nel diritto internazionale e comunitario (Milan: Giuffrè, 2006), 429–459. Lowe, ‘The Politics of Law-making’ 2000 (n 21), 221: ‘[i]nterstitial norms are the points where general culture obtrudes most clearly into the processes of legal reasoning’.

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relation to corruption.24 In fact, the definition issue has haunted us (i.e. the co-editors) from the outset of this project. Transparency is often associated with information and knowledge, legitimacy and accountability, participatory democracy and good governance. It means different things to different people in different contexts. It disperses in endless correlations to elude definition and rationalization. Certainly, we provided a definition when submitting our research proposal, as these days one hardly ever gets a research grant unless social sciences methodology is used. We chose for that purpose the definition given by the UN Economic Commission for Asia and the Pacific, as it was one of the few that focused almost exclusively on the aspect of information.25 Authors were given great latitude in terms of discretion, with the result that transparency was articulated in different guises in their individual contributions. Our suggestion to focus on transparency as information about legal processes in the different areas of international law was followed by some and ignored by others. Some contributors adopted specific definitions,26 while others took for granted the meaning of the term as well as its connotations. This was part of the intellectual exercise, as we wanted this collection of essays to reflect different understandings of transparency across the disciplinary board. Regardless of the definitional conundrum, to deal with transparency as a concept presents several advantages. It allows an evaluation of its contours without the strictures of any value-laden, a priori definition and 24

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Transparency International, Strategy 2015 (Berlin: Transparency International, 2011), 6. ‘Transparency means (. . .) that information is freely available and directly accessible to those who will be affected by such decisions and their enforcement. It also means that enough information is provided and that it is provided in easily understandable forms and media’. See United Nations Economic and Social Commission for Asia and the Pacific, ‘What is Good Governance?’, 2007, available at: www.unescap.org. See, for instance, Julie Maupin, ‘Transparency in International Investment Law: The Good, the Bad and the Murky’, chapter 6 in this volume, where she adopts a definition based on Abram Chayes, Antonia Handler Chayes and Ronald B. Mitchell: Abram Chayes/Antonia Handler Chayes/Ronald Mitchell, ‘Managing Compliance: A Comparative Perspective’, in Edith Brown Weiss/Harold K. Jacobson (eds.), Engaging Countries: Strengthening Compliance with International Environmental Accords, Global Environmental Accord: Strategies for Sustainability and Institutional Innovation 39 (Cambridge Mass.: MIT Press, 1998), 39–62, 43: ‘[w]e use “transparency” to mean the adequacy, accuracy, availability, and accessibility of knowledge and information about the politics and activities of parties to the treaty, and of the central organizations established by it on matters relevant to compliance and effectiveness, and about the operation of the norms, rules, and procedures established by the treaty’.

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it makes it less difficult to imagine that a normative prescription may exist in our mind, irrespective of any textual reference. Indeed, however difficult it may be to define it in precise terms we do possess an intuitive understanding of what transparency is. Paraphrasing St Augustine, one could say: ‘[w]hat then is transparency? If one asks of me, I know; if I wish to explain to him who asks, I know not’.27 It has to be conceded that, unlike other concepts that play a similar function in international law, the exact contours of the notion of transparency are particularly blurred. An effective way of attempting to grasp a concept which may be otherwise difficult to define is to resort to a metaphor. Metaphors are powerful tools of mediated knowledge that may help us to understand reality better, particularly when they provide mental links and associations to objects and situations that we experience in our daily life.28 As regards transparency, the most effective metaphor to convey its fundamental idea is that of a clean window that you can look through. Many of us would find this ‘image’ or ‘projection’ a good analogy29 or metaphor30 for transparency. And yet, even so, the idea of transparency can remain elusive. Do I have a clear view if I look through the clean window? What if my view is blurred? Is what I see reality or just a mental representation of what I expect to see? Does it make a difference whether the window is open or closed? Is transparency equivalent to nothingness? What if the outside is dark or if the sun is shining? Would what I see then not be different? To what extent could different types of window glass alter my perception of what I see? Is standing behind a perfectly transparent window equivalent to standing outside? Is what I see not dependent also on the position in which I am behind the window? By moving a few inches either side or by turning my eyes up or down, left or right, what I see can be remarkably different. I could probably go on and on and bore the reader with further 27

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In the original the query concerns time rather than transparency: ‘Quid est ergo tempus? Si nemo quaeret, scio; si quaerenti explicare velim, nescio’ (see James J. O’Donnell, Augustine: Confessions, vol. 1 (Oxford: Clarendon Press, 1992), book XI, Caput 14, 154. See George Lakoff/Mark Johnson (eds.), Metaphors We Live By (University Of Chicago Press, 2nd edn, 2003); Mark Johnson (ed.), Philosophical Perspectives on Metaphor (Minneapolis: University of Minnesota Press, 1981); George Lakoff, Women, Fire, and Dangerous Things: What Categories Reveal about the Mind (University of Chicago Press, 1990). William B. Mock, ‘An Interdisciplinary Introduction to Legal Transparency: A Tool for Rational Development’, Dickinson Journal of International Law 18 (2000), 293–304, 296. Mark Fenster, ‘Seeing the State: Transparency as a Metaphor’, Administrative Law Review 62 (2010), 617–673.

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questions related to the fairly simplistic and arguably misleading character of the window analogy. The truth is, however, that despite its fallacies, we still find the image of the window a good example of what transparency stands for. After all, we expect to see things beyond a clean window. We expect to have access to reality and apprehend it through our sight and comprehension. In other words, we expect to have unhindered access to physical data or information; we expect transparency ‘to open a window’ on information.

4. Transparency as Information The expectation of seeing through the window or through any other transparent material for that matter can be misleading, particularly if one expects to seize raw data or information in the purity of its pristine state. The problem with grasping the essence of such data or information is that in reality there is no such thing to be grasped. Data does not speak for itself, nor does information. In fact, the availability of information presents several dark sides. Even the most ardent supporters of transparency recognize that in our epoch of information technology the vast quantity of data and the ease with which it may be disseminated ‘may lead to chaos and breakdown’.31 Indeed, the idea that the availability of information is tantamount to empowering the people of the world (or of the State) against power and its many agglomerations is simplistic. Just as in economics ‘more information does not always produce markets that are more efficient’,32 data that is made available is not necessarily information that can be used directly by consumers. By the same token, information in other areas, including politics and law, has to enter the realm and meet the requirements of ‘complex chains of comprehension’33 in order to be aptly employed, and its actual use will not necessarily be righteous! The high level of manipulability of information, the risk of an information overload or of a disinformation campaign are all potential dark 31

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Daniel C. Esty, ‘Environmental Protection in the Information Age’, New York University Law Review 79 (2004), 115–211, 171. Archon Fung/Mary Graham/David Weil, Full Disclosure: The Perils and Promise of Transparency (New York: Cambridge University Press, 2007), 173. David Weil/Archon Fung/Mary Graham/Elena Fagotto, ‘The Effectiveness of Regulatory Disclosure Policies’, Journal of Policy Analysis and Management 25 (2006), 155–181, 157.

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sides of transparency that are well illustrated by the WikiLeaks saga.34 At the time this project was launched WikiLeaks was in the eye of the storm and I was asked by one of the contributors how on earth we had not included a specific case study. I answered that I expected the scandal to be short-lived and that the interest in the diplomatic cables and other sensitive materials disclosed by WikiLeaks would soon fade away. Interestingly enough, no one mentioned WikiLeaks during the twoday authors’ retreat we organized in January 2012. Were it not for the serious consequences which Bradley Manning is suffering35 and the pending accusations against and on-going hunt for Julian Assange, currently hosted by the Ecuadorean embassy in London, the ephemeral character of the whole affair would be almost baffling. And yet the WikiLeaks saga remains a perfect allegory of the use and misuse of information in the name of transparency. Throughout the whole process, the disclosure and publication of materials has been carefully orchestrated, thriving on cleverly raised expectations and artfully created perceptions of righteousness, from the first major breakthrough in April 2010 when the Baghdad airstrike video (also called collateral murder video) was aired,36 through to the time the Afghan war diaries were published,37 and the diplomatic cables were released in small, successive quantities until September 2011.38 By a constant build-up of expectation and a continuous process of anticipation and speculation, WikiLeaks succeeded in creating an extraordinary momentum for transparency, identified by world public opinion with the release of confidential information related to governmental action and policy-making. 34

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See, generally Charlie Beckett, Wikileaks: News in the Networked Era (London: Polity Press, 2012); Julian Assange, Julian Assange – The Unauthorised Autobiography (Edinburgh: Canongate Books, 2011); Julien Laurent, L’histoire secrète de WikiLeaks (Grainville: City, 2011); Edward R. Miller-Jones (ed.), Wikileaks: Removing the “Top Secret” Seal (Beau-Bassin: Fastbook, 2010). The trial of Bradley E. Manning, a United States army soldier with the rank of a Private First Class, who is accused of having passed on classified material to WikiLeaks, is set to begin in February 2013: Ed Pilkington, ‘Bradley Manning Trial Date Set for February 2013’, 30 August 2012, available at: www.guardian.co.uk. The video is available online, see: WikiLeaks, ‘Collateral Murder Video’, 5 April 2010, available at: http://wikileaks.org. See Alastair Dant/David Leigh, ‘Afghanistan War Logs: Our Selection of Significant Incidents’, 25 July 2010, available at: www.guardian.co.uk; see also Christopher J. Chivers et al., ‘View Is Bleaker than Official Portrayal of War in Afghanistan’, The New York Times (26 July 2010), A1. Scott Shane, ‘Spread of Leaked Cables on Web Prompts Dispute’, The New York Times (1 September 2011), A7.

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Journalistic accounts of the hectic weeks and months that led to the publication of the most relevant documents by an international media syndicate confirm that WikiLeaks had less to do with transparency and the fight against agglomeration and abuse of power than with individual narcissism and self-aggrandizement, money as well as media competition, and marketing strategies.39 The culmination of the story, with the uncensored release of over 250,000 documents in September 2011, is also paradigmatic. What had been previously carefully selected, leaked to create expectations and eventually published with a sense of perfect timing, was now unselectively released as if to set in motion uncontrollable forces that would flood the whole world. Amidst the turmoil of public outcry, the picture was blurred and it was no longer clear how one should orientate oneself in such an overwhelming flow of information that had been suddenly made public in the name of transparency. Such complex issues as the protection of intelligence sources, personal reputation and professional integrity were unceremoniously left behind and became ancillary to a rather futile debate that soon turned into a clash between ideologicallycharged and absolute values. Transparency was hailed as a nonnegotiable value on the road to good governance and democratic accountability. At the opposite end of the spectrum, the confidentiality of security-sensitive materials and the need to protect national security were painted as inevitable evils to maintain national as well as international order and security. Debates in public opinion often lack the subtleties that so often help to resolve problems in a constructive way. This was certainly one such instance. I suppose the gist of the story is that information is not a synonym for knowledge. Does one know better about events simply because one has more information? If this were to be the case, why is it then – as the New Yorker’s cartoonist once famously put it – that ‘if this is the information age (. . .) nobody knows anything?’40 39

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David Leigh/Luke Harding, WikiLeaks: Inside Julian Assange’s War on Secrecy (London: Guardian Books, 2011); see also the book of the former spokesman of WikiLeaks: Daniel Domscheit-Berg, Inside WikiLeaks: My Time with Julian Assange at the World’s Most Dangerous Website (New York: Crown, 2011). Compare also Andrew Fowler, The Most Dangerous Man in the World: The Explosive True Story of Julian Assange and the Lies, Cover-ups and Conspiracies He Exposed (New York: Skyhorse Publishing, 2011). Robert Mankoff, ‘Cartoon’, The New Yorker (20 April 1998), cited in Thomas N. Hale, ‘Transparency, Accountability and Global Governance’, Global Governance 14 (2008), 73–94, 86.

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As regards the legal aspects of the whole affair, a few insights that might be relevant to our investigation on the concept of transparency are in order. It seems to me worth noting at the outset that transparency in the case of WikiLeaks has come to be synonymous with illegality, because of the illegal way in which the relevant information was originally obtained. This poses an issue concerning the use of unlawfully obtained information at various levels.41 Suppose that such confidential information is invoked in international proceedings, whether they are related to State responsibility – imagine a case on the use of force before the International Court of Justice – or to individual criminal liability – such as proceedings against an individual for war crimes or crimes against humanity before the International Criminal Court. Could one make use of evidence like the materials released by WikiLeaks, which were arguably obtained in violation of some domestic law but not necessarily of any international human rights standards?42 One wonders, more generally, what the relationship between law and transparency is and what inferences one should draw from the fact that at times you might need illegality to achieve transparency. Similarly, one might also wonder what the outer limit of transparency is in cases that involve not just the reputation but also the physical integrity of individuals affected by the public disclosure of confidential information.43 Once again the dark – or at least the less bright – side of transparency comes to the surface.44 The ambiguity inherent in the concept of transparency as information and the many tensions it harbours can be further evidenced by another practical illustration. Think of the credit rating agencies and 41

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At the domestic law level in the United States, the debate has already been ignited, see Mark Fenster, ‘Disclosure’s Effects: WikiLeaks and Transparency’, Iowa Law Review 97 (2011), 753–807; James Freedman, ‘Protecting State Secrets as Intellectual Property: A Strategy for Prosecuting WikiLeaks’, Stanford Journal of International Law 48 (2012), 185–208; Patricia L. Bella, ‘WikiLeaks and the Institutional Framework for National Security Disclosures’, Yale Law Journal 121 (2011), 1448–1526; Simon Chesterman, ‘Wikileaks, Secrets, and Lies’, American Society of International Law Proceedings 105 (2011), 150–151. We are quite obviously not talking about the exclusionary evidence rule that would be applicable to information extorted from torture. See ‘Letter from Harold H. Koh, Legal Adviser, United States Department of State, to Jennifer Robinson, Attorney for Julian Assange’, 27 November 2011, available at: http:// media.washingtonpost.com; see also the reaction by Amnesty International and by the International Crisis Group, as reported in Jeanne Whalen, ‘Rights Groups Join Criticism of WikiLeaks’, 9 August 2010, available at: http://online.wsj.com. See Fenster, ‘Disclosure’s Effects: WikiLeaks and Transparency’ 2011 (n 41).

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their self-proclaimed mission to rate the financial standing of States and their bonds.45 Quite apart from any other issue concerning the actual independence and impartiality of such agencies, one wonders the extent to which they actually operate to foster transparency to the benefit of the investors as well as market stability. While I suspect many specialists would disapprove of any use of the word ‘transparency’ in this context, even the layman may view some specific aspects of the above example with scepticism. For instance, the fact that some of the information on which the rating relies is of a non-public nature;46 or the fact that little transparency exists within such agencies that are then expected to act as trustees of the community (or, rather, the financial markets). The perceived technical character of the credit risk assessment ignores the fact that data does not speak for itself and needs to be evaluated in context. Certainly, the explanation partly lies in the acritical worship we have developed for technical indicators – even in the domain of human rights and global governance they seem to be very much in fashion these days.47 Our belief in the value of what we deem to be a transparent process of disclosing economic indicators to the investors and the public is not affected even when the economists themselves admit that the calculations performed by rating agencies remain a ‘black box’ – admittedly quite a setback if the starting point was meant to be transparency.48 The rather unsettling truth is that to make information available is not synonymous with transparency. In and of itself information is 45

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See Andreas Kruck, Private Ratings, Public Regulations: Credit Rating Agencies and Global Financial Governance, Transformations of the State (Basingstoke: Palgrave Macmillan, 2011); Richard M. Levich/Giovanni Majnoni/Carmen M. Reinhart (eds.), Ratings, Rating Agencies and the Global Financial System, New York University Salomon Center Series on Financial Markets and Institutions Series 9 (Boston: Kluwer Academic Publishers, 2002). On the use of non-public information in ratings, see US Securities and Exchange Commission, ‘Report on the Role and Function of Credit Rating Agencies in the Operation of the Securities Markets – As Required by Section 702(b) of the SarbanesOxley Act of 2002’, January 2003, available at: www.sec.gov/, 34. See AnnJanette Rosga/Margaret L. Satterthwaite, ‘Measuring Human Rights: UN Indicators in Critical Perspective’, in Kevin Davis/Angelina Fisher/Benedict Kingsbury/Sally Engle Merry, Governance by Indicators: Global Power through Classification and Rankings (Oxford University Press, 2012); Kevin E. Davis/Benedict Kingsbury/Sally Engle Merry, ‘Indicators as a Technology of Global Governance’, Law and Society Review 46 (2012), 71–104. See Manfred Gärtner/Björn Griesbach/Florian Jung, ‘PIGS or Lambs? The European Sovereign Debt Crisis and the Role of Rating Agencies’, International Advances in Economic Research 17 (2011), 288–299. Björn Griesbach is cited in Marie-Astrid Langer, ‘Die Willkür der Rating-Riesen’, 7 July 2011, available at: www.zeit.de.

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ambivalent. There is no inherent value in it, as its value is highly dependent on context. Information can be, and in fact is, used instrumentally. It can be used for different, even conflicting, purposes and to attain different goals. The analogy of the clean window that most of us would use to grasp the concept of transparency can be misleading. At worst, it can turn our perception – just as well as our beliefs – into an illusion.

5. Transparency as Illusion Disciplines have the irritating tendency to appropriate issues. In other words they take possession and make exclusive use of certain phenomena or concepts, as if they pertained only to them. Law is obviously no exception. Yet, most of the time very interesting insights can be drawn from other ways of looking at things, as different ‘ways of looking’49 may lead to different ‘ways of seeing’.50 A cursory look at the way in which transparency and illusion are dealt with in other disciplines is quite illustrative of the benefits inherent in the inter-disciplinary exercise. Perhaps the questions that are asked are not the same – nor are the epistemological premises – but several interesting observations can be made that may help shed light on some aspects of the concept of transparency that are relevant to our inquiry. We generally hold a very simplistic view of what an illusion is. To most of us an illusion means believing something which is not true; or, being deceived by a false belief or perception. Insights from other disciplines can provide a more nuanced understanding of what illusions are about and how they might be related to transparency. As I mentioned at the outset, we now live fully immersed in an aspirational world of transparency. Transparency is the ultimate frontier in art, design and technology. Besides the aesthetics of design, transparency also performs more sophisticated functions at the interface of society and (professional) culture. The myth that ‘technology can disappear completely and put the viewer or user in touch with reality’ lies at the basis of current efforts to make the interface invisible and to offer ‘the illusion of three

49

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See the poem ‘Thirteen Ways of Looking at a Blackbird’ by Wallace Stevens (first published in 1917) in Wallace Stevens, Harmonium (London: Faber & Faber, 2001). See John Berger, Ways Of Seeing (London: Penguin UK, 1990). Ultimately, the point I am trying to make is not too different from Nelson Goodman’s in Ways of Worldmaking (Indianapolis: Hackett Publishing Company, 1978).

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dimensions’.51 Even if they push their strategy to the extreme, transparency designers know very well that there is a relationship of indirect proportionality between the simplicity that transparency inevitably brings about and the ever-increasing complexity of operating systems. In other words, transparency comes with the price of oversimplification. Yet, digital designers purposefully make use of such a deeply-rooted cultural assumption as transparency and ‘[l]ike clever magicians, they offer the audience an illusion that it is prepared to believe’.52 It is by this strategy that we come to accept the illusion of virtual reality. We may be looking at ‘a mirror, reflecting what we – as users – are inclined to believe, rather than at a glass or a transparent window’.53 There may be, of course, other explanations for illusions, if one is ready to shift further the angle of analysis by turning to psychology. It is extraordinary how the same phenomenon can take up entirely different connotations. To characterize an act of visual perception as a series of micro-decisions that our brain makes, relying only partly on the information on visual display, is a good way to understand the likelihood of visual illusions.54 The linkage between the eyes and the two brain hemispheres, the different conduction time for images to pass into such hemispheres; the fact that eye movement and fixation are stimulus-determined and that certain features such as acute angles can be powerful attractants of fixation; the misinterpretation of cues and any minimal failure of the visual system to put up with the perceptual input; are all factors that may induce visual illusions. Another slight shift of focus and one may be diverted to psychoanalysis and to Sigmund Freud’s theory of illusions being triggered by our own wishes. Unlike delusions, which stand in contradiction with reality, illusions are not per se false and do not contradict reality. The essential characteristic of illusions is that they are derived from human wishes. They consist of beliefs the prominent motivation of which is wish-fulfillment. This is what causes us to disregard connections with reality, but illusions are not false or erroneous perceptions of reality.55 Even when we believe or, rather, fear to be transparent, our perception is often misleading. Studies in psychology have been carried out that 51

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Jay David Bolter/Diane Gromala, Windows and Mirrors: Interaction Design, Digital Art, and the Myth of Transparency (Cambridge Mass.: MIT Press, 2003), 52. Ibid., 55. 53 Ibid., 54. See James O. Robinson, The Psychology of Visual Illusion (London: Hutchinson, 1972); Ernst H. J. Gombrich, Art and Illusion: A Study in the Psychology of Pictorial Representation, The A. W. Mellon Lectures in the Fine Arts 5 (Princeton University Press, 1989). Sigmund Freud, The Future of an Illusion; Civilization and Its Discontents, and Other Works (1927–1931) (London: Hogarth Press, 1973), 30–31.

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demonstrate how we tend to overestimate the capacity of our interlocutors to read our mind.56 Our self-perception of our own emotional and psychological transparency is often flawed. The internal sensations rarely become apparent on the outside and ‘individuals are typically less transparent than they suspect’.57 Interestingly enough, also in the context of negotiations – where emotional intelligence, human interaction and the reading of people’s minds are extremely important – there would be an illusion of transparency. Negotiators tend to ‘overestimate the extent to which their internal states “leak out”’.58 The interaction between them, ‘a blush here, an averted gaze there’,59 would be given far more importance than they actually have. This feeling of being transparent and easily readable by the other negotiators may engender a spiralling reaction towards holding back and becoming more and more secretive. Some authors have suggested that ‘(i)f negotiators know they tend to conceal less than they think they do, they may open up a bit more and increase their chances of reaching optimal agreements’.60 Transparency can be illusion (or delusion) in a myriad of different ways. From the above insights one can infer yet another observation about transparency, namely that transparency is intimately related to knowledge. The process of interaction is a complex one and what we come to know by transparency is determined by a variety of factors: our wishes, inclinations, predispositions, professional bias and so on and so forth. What we see through the window of transparency then becomes what we are trained/forced/persuaded to believe, or to make out of what we see. Uncontestably, this process is also about power.

6. Transparency as Power (-Knowledge) Power is diffuse and pervasive, as Michel Foucault would say.61 It is all around us in society and it does not always take the shape of physical 56

57 58

59 61

See Thomas Gilovich/Kenneth Savitsky, ‘The Spotlight Effect and the Illusion of Transparency: Egocentric Assessments of How We Are Seen by Others’, Current Directions in Psychological Science 8 (1999), 165–168; Kenneth Savitsky/Thomas Gilovich, ‘The Illusion of Transparency and the Alleviation of Speech Anxiety’, Journal of Experimental Social Psychology 39 (2003), 618–625. Ibid., 167. See Leaf Van Boven/Thomas Gilovich/Victoria Husted Medvec, ‘The Illusion of Transparency in Negotiations’, Negotiation Journal 19 (2003), 117–131, 118. Ibid., 128. 60 Ibid., 130. On the association Foucault makes between knowledge and truth, and on the authority of bodies of knowledge that advance truth claims as authoritative statements about

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coercion or manifest itself in obvious ways. Those who create and shape knowledge at all possible levels possess power. Availability of, and easy access to, information are part of the equation as knowledge is formed on the basis of information. Discursive strategies elaborated by knowledgewielding bodies are controlling. Transparency is part of such strategies for better or worse. The different epistemic communities that create the discourse in the various areas of international law make use of transparency or of its opposite to shape their discursive policies. Transparency, however, remains confined to its ancillary role. It has no essence. It is chameleon-like and may change depending on context. It would be simplistic to maintain that there is no cultural constraint on epistemic communities. Nowadays, transparency is more in keeping with community expectations, particularly as regards issues of governance at national and transnational levels. Although in some types of discourse, such as national security, secrecy and confidentiality remain the prevailing paradigm, they are increasingly challenged in the name of transparency. There may still be resilient areas, but that does not detract from the irresistible force of a wave that finds its origin in the shift from normative to cognitive expectations in contemporary Western culture.62 The ‘easy embrace of transparency’63 as an approach to many an issue, including decision-making and legal processes, also hides what has been termed a ‘defect of value’.64 The frustration with lack of visibility and fairness in international law and politics makes the call for imposing transparency compelling. A ‘coercive ideological transparency’,65

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reality, by which process reality itself is generated, see Michel Foucault, ‘Orders of Discourse’, Social Science Information 10 (1971), 9–11; Michel Foucault, The Archaeology of Knowledge & The Discourse on Language (New York: Vintage, 1972), 178–198. See Niklas Luhmann, Social Systems, Writing Science (Stanford University Press, 1995); and Andreas Fischer-Lescano/Gunther Teubner, ‘Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law’, Michigan Journal of International Law 25 (2003), 999–1046, 1000: ‘[i]n 1971, while theorizing on the concept of world society, Luhmann allowed himself the “speculative hypothesis” that global law would experience a radical fragmentation, not along territorial, but along social sectoral lines. The reason for this would be a transformation from normative (politics, morality, law) to cognitive expectations (economy, science, technology); a transformation that would be effected during the transition from nationally organized societies to a global society’. Mark Fenster, ‘The Opacity of Transparency’, Iowa Law Review 91 (2005–2006), 885–949, 885. Herbert Bau, ‘Receding into Illusion: Alienation, the Audience, Technique, Anatomy’, New German Critique 47 (1989), 93–117, 93. Geoffrey H. Hartman, ‘A Note on Plain Speech and Transparency’, Law and Literature 14 (2002), 25–30, 29.

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however, is unlikely to make up for the absence of other substantive values. Moreover, a world in which ideologically imposed transparency rules would be a world where there is less space for the transient, the risky, the bold and the uncertain.66 To set out to explore the less edifying and often dark sides of transparency is meant to warn against the risk of over-simplification. The parable of WikiLeaks is once again a case in point. The internal lack of transparency of the organization and the manipulative relationship of its leader to the media attest to the inherent ambiguity of the exercise of imposing transparency. What secrecy does overtly, transparency may do surreptitiously. Before entrapping the concept of transparency into the normative rigidities of the law one should realize its many – often conflicting – connotations. Upon closer scrutiny, the overloading of the concept of transparency with so many connotations and expectations should hardly come as a surprise. Our inner (secret) desire for transparency is part and parcel of our perennial quest for truth, the quest for the Holy Grail of good governance and democratic rule, legitimacy and accountability, justice and fairness to all. Once again the inconspicuous character of transparency comes to the surface. It is always an attribute; an accident to substance; an instrument to purpose. Ultimately, it is a mirror – rather than glass – in which our visions materialize and our desires come true, a visual illusion the power of which we find hard to resist. The power of illusion hardly hides the illusion of power. It is a sound reflex to beware of both. 66

Ibid., 28.

PART I International Environmental Law

2 Transparency and International Environmental Institutions jutta brunne and ellen hey*

1. Introduction In July 2011 the International Whaling Commission (IWC) adopted a resolution on ‘Improving the Effectiveness of Operations’ within it.1 The fact that this resolution was adopted by consensus, and that it is easily accessible at the Commission’s website, may not seem remarkable. A resolution on ‘effectiveness of operations’ should not be controversial and, in the age of the internet, we have become accustomed to being able to follow the activities of international environmental institutions (IEIs) from our offices or homes, often even in ‘real time’. In other words, we have come to take for granted a considerable degree of transparency in international environmental governance. And yet, transparency is a relative newcomer to international governance – the traditional mode of international governance, ‘namely diplomacy, has relied on secrecy and confidentiality’.2 The IWC resolution encapsulates the remarkable evolution of international law. Its anodyne title masks the fact that the resolution is above all about enhancing transparency. The IWC has been notorious for clinging to the old modes of diplomacy. Even member States could not obtain official written versions of IWC decisions until long after they were taken.3 Communications and documents were difficult or impossible * The authors are grateful to Sascha Grievink, Roel de Jong and Sean Tyler for their excellent assistance in the preparation of this chapter. 1 IWC, ‘Resolution 2011–1: On Improving the Effectiveness of Operations within the International Whaling Commission’, 2011, available at: http://iwcoffice.org. 2 Anne Peters, ‘Dual Democracy’, in Jan Klabbers/Anne Peters/Geir Ulfstein, The Constitutionalization of International Law (Oxford University Press, 2009), 263–341, 327. 3 See United Kingdom, ‘Proposals for Improving the Effectiveness of Operations within the International Whaling Commission (IWC) (Doc. IWC/63/F&A 4, Agenda Item 3.3.2)’,

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to access on the Commission’s website, and the secretariat accepted untraceable cash payments for parties’ membership dues.4 While many member States had been demanding reforms for some time, others vigorously resisted.5 They did so successfully for years, until the IWC resolved, in July 2011, that its ‘procedures should be brought into line with current international good practice’.6 It acknowledged ‘the importance of transparency in international law’, the evolution of the ‘international law and practice relating to transparency and participation in international decision-making’, the emergence of good practice under the auspices of multilateral environmental agreements (MEAs), that its operations could ‘benefit from enhanced transparency’, and that such improvements were ‘of vital importance’ to the ‘authority and legitimacy’ of the IWC.7 This chapter explores why and how IEIs foster transparency and the challenges that they face in doing so. Before we proceed, a few words on how we understand the notions of IEI and transparency. In adaptation of Robert O. Keohane’s influential definition of international institutions,8 we focus on ‘persistent and connected sets of rules and practices that prescribe behavioral roles, constrain activity, and shape expectations’ in relation to environmental matters.9 For present purposes, we are interested in intergovernmental entities that exercise public powers,10 including specialized UN agencies, such as the International Maritime Organization (IMO), bodies established by the UN General Assembly, such as the United Nations Environment Programme (UNEP), institutions based on cooperative arrangements between intergovernmental

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6 8

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12 May 2011, available at: http://archive.defra.gov.uk/wildlife-pets/wildlife/protect/ whales/documents/iwc63-improve-iwc-operations.pdf. Ibid.; see also Deutsche Welle, ‘Whaling Commission Agrees to Anti-Corruption Reforms’, 14 July 2011, available at: www.dw-world.de. Alexander Gillespie, ‘Transparency in International Environmental Law: A Case Study of the International Whaling Commission’, Georgetown International Environmental Law Review 14 (2001–2002), 333–348. 7 IWC, ‘Improving the Effectiveness’ 2011 (n 1). Ibid., preamble. Robert O. Keohane, International Institutions and State Power: Essays in International Relations Theory (Boulder: Westview Press, 1989), 3. We leave aside institutions that may deal with environmental matters in the course of their non-environmental mandates, such as the World Trade Organization. See Ellen Hey, ‘International Institutions’, in Daniel Bodansky/Jutta Brunne´e/Ellen Hey (eds.), Oxford Handbook of International Environmental Law (Oxford University Press, 2007), 749–769, 751.

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entities, such as the Global Environment Facility (GEF), and treaty bodies established by MEAs, such as Conferences of the Parties (COP).11 We understand transparency broadly, as ‘the opposite of secrecy’,12 and as encompassing ‘mechanisms that facilitate the release of information about policies, capabilities, and preferences to outside bodies’.13 Our focus will be both on what has been termed ‘transparency of governance’ and on what has been referred to as ‘transparency for governance’.14 We conceive of the former as focused on the degree to which the activities and procedures of an IEI are transparent to State and non-State actors, including citizens, NGOs and business entities. We understand the latter to refer to the use of transparency mechanisms as policy instruments deployed by an IEI, used in support or in lieu of regulation, to influence the conduct of States and non-State actors. While we suggest that distinguishing the two types of transparency is useful for analytical purposes, our analysis illustrates that, in practice, transparency mechanisms frequently combine elements associated with both types of transparency. We begin with an exploration of the reasons why transparency of governance in IEIs has assumed such importance, and why IEIs might pursue various mechanisms that promote transparency for governance. We suggest that, beyond a range of pragmatic reasons for promoting transparency, there are more fundamental reasons why IEIs should foster transparency. Next we consider the main patterns for promoting transparency that are discernible in IEIs and some of the challenges that they pose. We focus on three such patterns: the open and participatory nature of deliberations, the exchange of information, reporting and compliance, and IEIs’ engagement with the private sector. Our analysis illustrates that IEIs are relatively transparent, but that transparency is only a first step in attaining meaningful participation, particularly for some developing States and for southern NGOs. We conclude that transparency is central if IEIs are to foster shared understandings among States and other actors and enable international governance anchored in law.

11 12 13

14

For a detailed exploration, see ibid. Ann Florini, ‘The End of Secrecy’, Foreign Policy 112 (1998), 50–63, 50 and 53. Bernard Finel/Kristin Lord, ‘The Surprising Logic of Transparency’, International Studies Quarterly 43 (1999), 315–339, 315 (referring to institutional transparency). Ronald B. Mitchell, ‘Transparency for Governance: The Mechanisms and Effectiveness of Disclosure-based and Education-based Transparency Policies’, Ecological Economics 70 (2011), 1882–1890.

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2. Why Transparency? As classically conceived, international law was a device through which to regulate the relations of sovereign States, and formalize the outcomes of inter-State negotiations on select issues of mutual concern. Whether this conception of international law was ever entirely accurate need not detain us here. In international environmental law, in any case, the inter-State paradigm relatively quickly proved to be incomplete. Even if the very first environmental or natural resource issues to rise to the international agenda, such as water allocation, transboundary pollution, or conservation and harvesting of fish, were conceived as interferences with sovereign interests, they ultimately affected the populations within countries. Today it is abundantly clear that environmental concerns implicate individuals and groups in society, and not just States. Typically, it is not States that are most directly impacted by or directly cause environmental degradation or resource scarcity, but individuals and groups in society, such as farmers or industries. NGOs, furthermore, represent a variety of the interests at stake. In brief, complicated global interdependencies exist between States and individuals or groups within them, so that decision-making in IEIs typically engages a variety of interconnected interests. Another distinctive feature of the problems addressed by IEIs is that they tend to be collective action problems. Many different actors with a wide variety of capabilities are implicated by such problems and many must cooperate if they are to be solved. The challenge of promoting collective action among diverse actors is exacerbated by the fact that many international environmental problems entail significant uncertainties concerning their causes and likely effects, as well as concerning available response actions and their economic and technological feasibility. International environmental governance problems are also highly dynamic – scientific understanding evolves over time, as do the problems themselves, technological capacity, and economic and political conditions.15 It stands to reason that, given these features, effective international environmental governance requires transparency. Conceived from this purely pragmatic standpoint, transparency issues arise at a number of points in the spectrum of governance activities undertaken by, or under 15

See Daniel Bodansky/Jutta Brunne´e/Ellen Hey, ‘International Environmental Law: Mapping the Field’, in Bodansky/Brunne´e/Hey (eds.), Oxford Handbook 2007 (n 10), 1–25, 7–8.

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the auspices of, IEIs: agenda-setting, negotiation, decision-making and law-making, implementation review, and compliance processes. For example, information-sharing and scientific exchange help build the shared knowledge and identify the common priorities without which agenda-setting and negotiation, and decisions on legal standards or other policy instruments, would not be possible.16 Further, without information on overall implementation patterns and compliance by individual States with relevant commitments, the effectiveness of the IEI’s activities could not be assessed. In turn, information concerning effectiveness will feed back into agenda-setting, negotiation and decision-making processes, serving to reinforce policy choices or prompting their adjustment. Indeed, a key strength of IEIs is that they help manage the uncertainty and evolving nature of environmental problems by institutionalizing interactions on a given issue, allowing for continuous scientific exchange and feedback loops between the various stages of the regulatory and policy process. The production of generally accepted scientific and other background information, as well as of reliable information concerning the performance of individual parties and the success of collective action, also plays a crucial role in building trust. States will be more inclined to collaborate within the IEI, make significant commitments and comply with their commitments, if they are assured of reciprocity of efforts and overall effectiveness of collective efforts.17 In short, transparency regarding scientific, technological or economic factors is important in inducing, and sustaining, cooperation. With the proliferation of and growing influence of IEIs, pointed questions have also come to be asked about the legitimacy of international environmental governance.18 Proper deliberative and decisionmaking processes have assumed heightened importance in promoting legitimacy.19 Hence, transparency of negotiating, decision-making and 16

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See Peter Haas, ‘Epistemic Communities’, in Bodansky/Brunne´e/Hey (eds.), Oxford Handbook 2007 (n 10), 791–806, 798–799. See Abram Chayes/Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge Mass.: Harvard University Press, 1995), 22–24 (commenting on the role of transparency). See Daniel Bodansky, ‘The Legitimacy of International Governance: A Coming Challenge for International Environmental Law’, American Journal of International Law 93 (1999), 596–624; Steven Bernstein, ‘Legitimacy in Global Environmental Governance’, Journal of International Law and International Relations 1 (2005), 139–166. Vivek Ramkumar/Elena Petkova, ‘Transparency and Environmental Governance’, in Ann Florini (ed.), The Right to Know: Transparency for an Open World (New York: Columbia University Press, 2007), 279–308, 283.

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compliance processes – transparency of governance – is an important dimension of what some commentators refer to as ‘input legitimacy’.20 Although, up to this point, we have focused on transparency of IEI governance, it will be apparent that this dimension of transparency is often closely connected to transparency for governance. For example, availability of relevant factual or scientific information enhances transparency of governance because it enables States and other actors to assess the need for action and whether the IEI succeeds in promoting relevant action. At the same time, to the extent that access to this type of background information is designed to assist the IEI in promoting effective collective action, it is a crucial aspect of transparency for governance as well. By the same token, the legitimacy of an institution flows not only from its decision-making processes but also from its success in promoting its ends.21 This ‘output legitimacy’ too is connected to transparency, especially to transparency for governance. We suggest that these questions concerning the legitimacy of IEI governance are connected to a more fundamental set of considerations concerning the role of IEIs in promoting international governance anchored in law. As conventionally understood, international law is generated by States through a set of formal sources that are anchored in State consent. For present purposes, the most important of these sources is treaty law. However, this account of international law is increasingly strained, in part because of the widening range of non-State actors implicated by global environmental governance and in part because decision-making in IEIs is not always directly sanctioned by formal State consent.22 A more dynamic understanding of international law emerges when the focus is shifted from the formal manifestations of law to the interplay between norms produced through social interaction and the traits and practices that imbue such norms with legality.23 In other words, all norms are rooted in shared knowledge and shared understandings of right conduct. Legal norms are distinguished from other social norms not primarily through form or 20

21 22

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See Daniel Bodansky, ‘Legitimacy’, in Bodansky/Brunne´e/Hey (eds.), Oxford Handbook 2007 (n 10), 704–723 (discussing the various sources of legitimacy). Bodansky, ‘Legitimacy of International Governance’ 1999 (n 18). On the latter issue, see Jutta Brunne´e, ‘COPing with Consent: Lawmaking under Multilateral Environmental Agreements’, Leiden Journal of International Law 15 (2002), 1–52; Ellen Hey, Teaching International Law, State-consent as Consent to a Process of Normative Development and Ensuing Problems (The Hague: Kluwer Law International, 2003). See Jutta Brunne´e/Stephen J. Toope, Legitimacy and Legality in International Law: An Interactional Account (Cambridge University Press, 2010), ch. 1.

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pedigree but through adherence to specific criteria of legality. They must be general. They must also be promulgated, enabling actors to know what the law requires. Law should not be retroactive, so that actors can take it into account in their decision-making. Legal norms must also be clear, enabling actors to understand what is permitted, prohibited or required by law. Law should avoid contradiction and it should not demand the impossible. Its requirements should remain relatively constant over time and, finally, there should be congruence between the promulgated norms and the actions of those operating under the law. This last requirement highlights that legal norms, like all social norms, are contingent on social practice. Not only must actors work together to build and sustain the shared factual or normative understandings in which law is rooted, they must also sustain legal norms by adhering to practices that uphold the criteria of legality. In turn, when these requirements of legality are met, actors will be able to organize their interactions through law. Hence they generate a distinctive legal legitimacy and a sense of commitment to law.24 This interactional account of international law, we believe, illuminates the central role of transparency. Resilient shared understandings can only emerge through meaningful participation of all relevant actors, when all actors have the same information, and when they do in fact understand what is at stake and what others are concerned with. The requirements of legality too are inextricably linked to transparency. For example, promulgation, clarity and predictability are designed to promote transparency and, in turn, they are undercut by lack of transparency. Similarly, transparency regarding the performance of individual actors and the overall implementation of standards set by an IEI reinforces the congruence criterion by revealing whether or not these standards are in fact sustained by prevailing practices. We now turn to examining how IEIs engage with transparency and the challenges that they encounter in that engagement.

3. Transparency: Patterns and Challenges As the previous section illustrates, transparency is desirable at all stages of decision-making in IEIs. We suggest that three patterns stand out in terms of how transparency has developed in IEIs and the challenges that 24

Jutta Brunne´e/Stephen J. Toope, ‘Interactional International Law and the Practice of Legality’, in Emanuel Adler/Vincent Pouliot (eds.), International Practices (Cambridge University Press, 2011), 108–135, 110–120.

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IEIs face: the open and participatory nature of deliberations, the changed role of IEIs in the exchange of information reporting and compliance, and IEIs’ engagement with the private sector.

3.1

Access to Information, Open Deliberations and Meaningful Participation

International governance through IEIs has had to adjust the multilayered requirements of transparency. Not surprisingly, early efforts to promote transparency were strictly focused on inter-State relations. With respect to negotiations and law-making processes, the first step towards transparency was to allow non-member States and other international organizations to observe plenary sessions of the IEI and, in due course, to publish decisions and legal instruments adopted under the auspices of the IEI. Thus, while most IEIs were not secretive in the way that made the IWC notorious, obtaining information and documentation could be practically difficult even for member States. Today, access to deliberations is one way in which IEIs pursue transparency, both for States and other actors. Such direct access to IEI meetings obviously enhances the transparency of IEIs and their activities.25 But transparency does not necessarily require direct participation. Indeed, the most dramatic increase in transparency vis-à-vis all interested State and non-State actors has been facilitated by electronic means of communication and especially the rise of the internet. We first consider direct access to deliberations and then turn to other means of enhancing the transparency of IEI governance processes. The regular mode of proceeding in most IEIs is that all State parties and a large number of observers, including non-member States, intergovernmental organizations and non-State actors, such as NGOs, are permitted to participate in COPs and the meetings of subsidiary bodies, including bodies of limited composition. Instruments generally require NGOs to show that they have expertise or an interest in the subject matter of the body concerned, and subject NGO participation to the approval of its member States. The UN climate change regime, anchored in the 1992 UN Framework Convention on Climate Change (UNFCCC)26 and its 1997 Kyoto 25 26

Gillespie, ‘Transparency in International Environmental Law’ 2001–2002 (n 5), 338. United Nations Framework Convention on Climate Change, 9 May 1992, 1771 UNTS 107 (UNFCCC).

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Protocol,27 provides one illustration of the current practice under multilateral environmental agreements (MEAs) and other IEIs. The meetings of the treaty bodies, including bodies of limited composition, are directly accessible to accredited observers,28 who may make interventions at meetings, subject to the approval of the chairperson.29 Almost 100 intergovernmental organizations30 and almost 1,600 non-governmental entities are accredited with the UNFCCC.31 While the UNFCCC merely stipulates that such entities be ‘qualified in matters covered by the Convention’,32 it has been ‘established practice’ that, in order to be accredited, ‘observer organizations are required to furnish proof of their independent juridical personality and non-profit and/or taxexempt status in a State Member of the United Nations’.33 The nonprofit requirement does not preclude business interests from being represented, so long as they are organized in the form of a non-profit legal entity. The UNFCCC’s long list of accredited non-governmental observers includes, under the rubric of NGO, public interest as well as business advocacy groups, think tanks and universities.34 However, notwithstanding these well-established practices, non-State actors do not have an actual right to participation or information.35 Access is ultimately left to the discretion of the IEI and its member States. Under article 7.6 of the UNFCCC and article 13.8 of the Kyoto 27

28 29

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Kyoto Protocol to the United Nations Framework Convention on Climate Change, 11 December 1997, 2303 UNTS 162. UNFCCC, 1992 (n 26), art. 7(6). UNFCCC, Climate Change Secretariat, ‘A Guide to the Climate Change Convention Process’, 2002, available at: http://unfccc.int, 31. See UNFCCC, ‘Admitted IGO’, available at: http://maindb.unfccc.int/public/igo.pl? mode=wim. See Miquel Mun˜ oz Cabre´, ‘Issue-linkages to Climate Change Measured through NGO Participation in the UNFCCC’, Global Environmental Politics 11 (2011), 10–22, 10. See also http://unfccc.int/parties_and_observers/items/2704.php. UNFCCC, 1992 (n 26), art. 7(6). See UNFCCC-Secretariat, ‘Standard Admission Process for Non-governmental Organizations (NGOs)’, available at: http://unfccc.int/files/parties_and_observers/ngo/ application/pdf/admission_process_2010_english.pdf. See UNFCCC, ‘Admitted NGO’, available at: http://maindb.unfccc.int/public/ngo.pl. For a detailed analysis of represented constituencies, see Cabre´, ‘Issue-Linkages’ 2011 (n 31). Similarly, the 2003 guidelines for the participation of NGOs at meetings of UNFCCC bodies provide a brief list of rules on access, etiquette, safety and distribution of information materials, but do not spell out rights. See UNFCCC, ‘Guidelines for the Participation of Non-governmental Organizations at Meetings of the Bodies of the United Nations Framework Convention on Climate Change’, March 2003, available at: http://unfccc.int/files/parties_and_observers/ngo/application/pdf/coc_guide.pdf.

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Protocol, respectively, the UN and its specialized agencies, as well as UN member and observer States, ‘may be represented’ at the plenary meetings of the climate regime. By contrast, intergovernmental and nongovernmental entities ‘may be so admitted unless at least one third of the Parties present object’. Details are left to the COP’s draft rules of procedure that, although not formally adopted, have governed the COP’s practice. On accreditation of observers, the draft rules reiterate the above-mentioned treaty provisions.36 On access, they provide that COP meetings ‘shall be held in public’ unless the COP decides otherwise, whereas meetings of subsidiary bodies ‘shall be held in private’ unless the COP decides otherwise.37 Some subsidiary bodies, such as the Executive Board of the Clean Development Mechanism, have their own rules of procedure, which require transparency of deliberations, both at meetings and through the internet.38 The rules of procedure of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) provide a similar approach.39 The rules entitle all State parties, States not party to the Convention, the United Nations, its specialized agencies, and the International Atomic Energy Agency (IAEA), as well as accredited NGOs, to participate in the COP and in CITES Committees I and II. These committees deal with, respectively, amendments to the CITES annexes, which list endangered species, and matters that the COP assigns to it, such as the synergy between CITES and the Convention on Biological Diversity (CBD).40 Participation by NGOs is subject to the requirement that they be ‘technically qualified in protection, conservation or management of wild fauna and flora’; an NGO may be barred from participation if one-third of the States parties object thereto.41 All 36

37 38

39

40

41

See UNFCCC, Draft Rules of Procedure of the Conference of the Parties and its Subsidiary Bodies, FCCC/CP/1996/2, 22 May 1996, rules 6 and 7. Ibid., rule 30. UNFCCC, Report of the Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol on its First Session, held at Montreal from 28 November to 10 December 2005 – Addendum: Part Two: Action Taken by the Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol at its First Session, FCCC/ KP/CMP/2005/8/Add.1, 30 March 2006, annex 1: Rules of Procedure of the Executive Board of the Clean Development Mechanism, rules 26 and 27. Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3 March 1973, 993 UNTS 243 (CITES). CITES, ‘Rules of Procedure of the Conference of the Parties’, available at: www.cites.org/ eng/cop/E14-Rules.pdf, rules 1 and 2; Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79 (CBD). CITES, ‘Rules of Procedure’ (n 40), rule 2.

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participants in CITES meetings have the right to participate in the deliberations, subject to being called upon by the presiding officer.42 A more generous approach to observer participation is found in the practice of UNEP’s Governing Council, a body of limited composition. Its meeting and those of its subsidiary bodies are open to States that are UN members, members of specialized agencies or the IAEA, as well as intergovernmental organizations and NGOs.43 Observer States and intergovernmental organizations may participate in the deliberations and submit proposals, while accredited NGOs with an interest in the environment are entitled to make oral and submit written statements.44 The openness of UNEP’s Governing Council to observers, creating a right of participation for States and providing a very broad entitlement for NGO participation, can probably be explained by the fact that UNEP is a subsidiary body of the UN General Assembly.45 The GEF has somewhat different arrangements in place for the meetings of its Council, a body of limited composition, and its plenary Assembly. In both cases, State members and a large number of intergovernmental organizations cooperating with the GEF may attend meetings.46 NGO participation in the Council is at the invitation of the GEF’s Chief Executive Officer; NGOs may attend or observe meetings.47 In the case of the Assembly, accredited major groups may attend or observe meetings with a maximum of eighteen NGO representatives being entitled to attend meetings.48 Observers, both at Assembly and Council meetings, observe proceedings from a viewing room.49 Two phenomena are noteworthy when considering the participatory nature of IEI deliberations. First, even States that are not parties to an IEI actively participate in deliberations under its auspices. After all, 42 43

44 45

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47 48 49

Ibid., rule 17. UNEP, ‘Rules of Procedure of the Governing Council of the United Nations Environment Programme’, available at: www.unep.org/Documents.Multilingual/ Default.asp?documentid=77&articleid=1142, rules 67, 68 and 69. Ibid. UNGA, Institutional and Financial Arrangements for International Environmental Co-operation, A/RES/2997(XXVII), 15 December 1972. GEF, ‘Rules of Procedure for the GEF Assembly’, October 2000, available at: www.thegef. org, rule 5; GEF, ‘Rules of Procedure for the GEF Council’, October 2007, available at: www.thegef.org, rules 17–21. GEF, ‘Rules of Procedure GEF Council’ 2007 (n 46), rule 22. GEF, ‘Rules of Procedure GEF Assembly’ 2000 (n 46), rule 2(l). GEF, ‘Rules of Procedure GEF Council’ 2007 (n 46), rule 2(0) juncto rule 22; GEF, ‘Rules of Procedure GEF Assembly’ 2000 (n 46), rule 2(l) juncto rule 5(l).

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non-parties too are affected by (in)action pursuant to a regime that deals with a collective action problem. Hence, the United States, neither a signatory nor a party to the CBD, actively participates in the proceedings of CBD treaty bodies.50 Second, large numbers of non-State actors may be in attendance at any one meeting. COP-10 of the CBD, held in October 2010, for example, was attended by 50 intergovernmental organizations, 128 academic institutions, 60 indigenous groups, 271 NGOs, 29 local authorities, 97 industry groups, 21 parliamentarians and 75 other observers.51 The participatory nature of deliberations, however, also poses at least two challenges for IEIs, both related to the involvement of developing countries. The first challenge relates to the fact that transparency mechanisms in IEIs not only seek to facilitate engagement between formally equal States but also to level the very uneven playing field between developed and developing States, in particular least-developed States. Constraints on the ability to attend meetings are a key aspect of this challenge. The problem is best illustrated by the fact that, on the occasion of a COP, numerous formal and informal meetings will take place at any one time and that, over the course of a year, the many subsidiary bodies and working groups of various MEAs will meet at different times. Attendance of such meetings is costly and often requires, at least at COPs, relatively large delegations with a diversity of expertise. One study reports that the United States delegation at COP-16 of the climate regime had 155 members; the European Union delegation had 102 members, with the European Union and its member States being represented by over 1,000 delegates. African States, excluding Nigeria and South Africa, were represented by on average 22 delegates. Moreover, 98 delegations, the vast majority representing developing States, comprised less than 17 members each.52 Since the 1990s, MEAs have sought to address this problem through voluntary funds that provide financial assistance to developing State delegations. For example, at COP-16 of the climate regime, 349 government delegates from

50

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See e.g. UN, CBD, Report of the Tenth Meeting of the Conference of the Parties to the Convention on Biological Diversity, UNEP/CBD/COP/10/27, 11 January 2010, which evidences the active involvement of the United States. See ibid., annex I. UNfairplay, ‘Levelling the Playing Field: A Report to the UNFCCC on Negotiating Capacity and Access to Information’, April 2011, available at: http://unfccc.int, 14–15 and appendix 9.

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developing States were financed by the Trust Fund for Participation in the UNFCCC Process.53 The second major challenge concerns ensuring transparency for, as well as managing, the large numbers of NGO observers. It has been estimated that up to 80% of NGOs attending meetings of IEIs come from developed States.54 Furthermore, the sheer number of NGOs attending any one meeting actually complicates efforts to ensure meaningful participation. These considerations have prompted some IEIs to structure NGO participation. UNEP, for example, prior to a meeting of its Governing Council, organizes a ‘global major groups and stakeholders forum’ in which States and NGOs can interact.55 The GEF probably has gone furthest in structuring its relationship with NGOs. In 1995, the GEF established the GEF-NGO Network,56 which was restructured in 2008.57 In 2012, the Network had 462 NGO members from developing and developed regions.58 The GEF-NGO Network aims to facilitate NGO involvement in GEF-related activities at all levels, including the project level and the governing bodies of the GEF. It is governed by a Coordinating Committee that comprises fifteen regional focal points and three focal points representing indigenous peoples organizations.59 Members of the Coordinating Committee are elected within the region they represent and together they elect one of the regional focal points as the central focal point, which coordinates the activities of the Network.60 All functionaries are elected for four-year terms, once renewable.61 Since 2010, the Network accredits NGOs for the GEF, replacing the GEF’s previous accreditation process.62 The network receives GEF funding63 and members of the Network are obliged to ‘contribute to the

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58 59

60 63

UNFCCC, Budget Performance for the Biennium 2010–2011 as at June 2011, FCCC/ SBI/2011/16, 19 September 2011. See UNfairplay, Levelling 2011 (n 52), 13. See UNEP, ‘Thirteenth Global Major Groups and Stakeholders Forum (GMGSF -13)’, available at: www.unep.org. See GEF-NGO Network, ‘Introduction’, available at: www.gefngo.org; the network has functioned informally since 1995. Ibid.; and GEF-NGO Network, ‘GEF-NGO Strategic Plan (August 2008)’, available at: www.gefngo.org. See GEF-NGO Network, ‘Members’, available at: www.gefngo.org. GEF-NGO Network, ‘Revised Rules of Procedures for the Operation and Management of the GEF-NGO Network’, 26 June 2010, available at: www.gefngo.org, rule 2.2. Ibid., rules 2.2.3–2.2.5 and annex 5. 61 Ibid., rule 3. 62 Ibid., rule 2.1. GEF, ‘Summary of Document GEF/C.34/9: Enhancing Civil Society Engagement and Partnership with the GEF’, available at: www.thegef.org.

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development and implementation of GEF policies and programmes’.64 Comparing the GEF-NGO Network to the participatory procedures of MEAs, its highly institutionalized character stands out, as does the balanced participation of NGOs located in developed and developing countries. A dilemma, however, also presents itself. On the one hand, the GEF-NGO Network is a means of enhancing meaningful participation by NGOs, southern NGOs in particular. On the other hand, the Network’s close connections with and financial dependence on the GEF may limit its own and its members’ independence. Electronic means of communication and the technical possibilities provided by the internet (e.g. rapid posting of official documents such as submissions or proposals by parties and observers, reports of meetings, decisions and legal instruments, or findings of a compliance body; livestreaming or video recordings of IEI meetings or online consultations) can address some of the challenges highlighted above. In particular, electronic means of communication and the internet help mitigate the above-mentioned constraints on direct participation by NGOs in IEI proceedings, be they financial limitations, space constraints of the meeting venue, or challenges posed by the large number of observers at a given meeting. COP-15 of the climate regime, held in Copenhagen in December 2009, provides a vivid illustration. Due to fire restrictions, access to the conference venue was capped at 15,000. As a result, many of the thousands of accredited NGO representatives could not attend the meetings, especially during the final two days.65 For those who were shut out of the venue, webcasts of the plenary sessions were available at the UNFCCC website and countless reports and updates were sent from individuals inside the venue to the outside via e-mail, Facebook, Twitter or blog entries.66 In other words, in addition to the transparency measures undertaken by the IEI itself, civil society participants took transparency into their own hands, making it almost as easy to follow the Copenhagen meetings

64

65

66

See GEF-NGO Network, ‘Rules of Procedure GEF-NGO Network’ 2010 (n 59), annex 9, paras. 1 and 3. See Ian M. McGregor, ‘Disenfranchisement of Countries and Civil Society at COP-15 in Copenhagen’, Global Environmental Politics 11 (2011), 1–7, 3 (noting that many NGO representatives nonetheless were able to attend the meetings because some States added NGO representatives to their delegations to provide them with access). See e.g. Dan Bodansky, ‘Sleepless in Copenhagen’, 19 December 2009, available at: http://opiniojuris.org/2009/12/19/sleepless-in-copenhagen-2/.

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from Toronto or Sydney as from Copenhagen. Another example of nongovernmental efforts to increase the transparency of IEIs is the Earth Negotiations Bulletin.67 The Earth Negotiations Bulletin is produced by the International Institute for Sustainable Development, a Canadian non-profit organization.68 Earth Negotiations Bulletin staff cover major environmental negotiations and publish daily summaries of the main developments through the internet. The Earth Negotiations Bulletin has come to be so well respected for its impartial and precise reporting that State negotiators rely on the service for updates just as much as observers do. Of course, none of these tools was able to overcome the restricted access to and information about – even for the States party to the UNFCCC – the behind-closed-doors meetings of a small group of key States that hammered out the Copenhagen Accord in the final hours of COP-15.69 Arguably, the Accord was controversial not only because of its content and what many States considered to be procedural irregularities,70 but also because the States involved had returned to the ‘secret diplomacy’ that IEIs have worked so hard to overcome. To be sure, at times small group diplomacy may be needed to advance negotiations. But, as the experience with the Copenhagen Accord underscores, reduced transparency can come at a high legitimacy cost. This all said, while transparency is not necessarily contingent on direct participation, effective participation is arguably dependent on transparency. Thus, quite apart from their ability to attend meetings, States that do not have relevant factual or legal information, or the capacity to properly assess the information, cannot genuinely participate in negotiations.71 According to some observers, the imbalance between developed and developing State participation is further enhanced by problematic access to internet in at least some developing States.72

67 68

69 70

71

72

Archives available at: www.iisd.ca/voltoc.html. See International Institute for Sustainable Development, ‘About IISD’, available at: www.iisd.org/about/. McGregor, ‘Disenfranchisement’ 2011 (n 65), 4–5. See Lavanya Rajamani, ‘The Making and Unmaking of the Copenhagen Accord’, International and Comparative Law Quarterly 59 (2010), 824–843, 825–826. See Joyeeta Gupta, On Behalf of My Delegation,. . .: A Survival Guide for Developing Country Climate Negotiators (Washington DC: Centre for Sustainable Development of the Americas, 2000). See UNfairplay, ‘Levelling’ 2011 (n 52).

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3.2

Exchange of Information, Reporting and Compliance

Transparency in IEIs is also fostered by the exchange of two broad types of information among State parties and with other actors. First, as highlighted in section 2 above, transparency regarding scientific, technological or economic factors is important in inducing and sustaining cooperation among parties and giving IEIs credibility in the eyes of a wider audience. For example, in the climate change regime transparency concerning scientific data and methods played a central role in arriving at common understandings of what it would take to meet the regime’s objective.73 Given the magnitude and political sensitivity of the scientific task, the climate regime relies on the Intergovernmental Panel on Climate Change (IPCC), a separate IEI, established by UNEP and the World Meteorological Organization (WMO). Thousands of scientists collaborate through the IPCC to assess the most recent scientific, technical and socio-economic information concerning climate change.74 The IPCC is open to all UN members and currently has 195 member countries, which participate in the review process and adopt the panel reports at the organization’s plenary sessions.75 Transparency is one of the IPCC’s central guiding principles,76 not surprisingly since its very enterprise and credibility are dependent on transparent procedures, methods and findings. Hence, intergovernmental and non-governmental observer organizations have access to plenary sessions and working group meetings;77 background information, scientific reports and other documentation can be accessed at the panel’s website. Second, effective collective action also requires reliable information on implementation and compliance by individual States with relevant commitments. For example, negotiations about emission reductions require a clear picture of States’ emissions baselines and relative contributions to overall emissions. States need to be assured of their counterparts’ performance, in part to build trust among States by making their performance transparent to all participants in the IEI. Regular reports submitted by State parties play an important role in 73 74

75 76

77

UNFCCC, 1992 (n 26), art. 2. UN, IPCC, ‘Organization’, available at: www.ipcc.ch/organization/organization. shtml. See ibid. IPCC, ‘Principles and Procedures’, available at: www.ipcc.ch/organization/organization_ procedures.shtml. See ibid.

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these respects and the websites maintained by IEIs are crucial in achieving access to this information. Where access to the internet is readily available, these websites contribute to levelling the playing field among States and other actors in an IEI. Access to information, however, is not the only goal of reporting mechanisms: they also serve to monitor implementation. Transparency regarding their performance exposes States to international scrutiny, peer pressure and global public opinion. Information regarding implementation patterns also enables civil society actors to assess the success (or failure) of an IEI, to campaign for stronger action and, through international or domestic channels, to exert pressure on individual States. It furthermore enables private sector actors to ascertain what is expected of them. Over time these latter roles have become more important, especially in MEAs. Concomitantly, the involvement of third parties, such as secretariats, experts and compliance bodies, has increased.78 Whereas early instruments relevant to IEIs often did not differentiate between exchange of information and reporting requirements for purposes of monitoring implementation and compliance, contemporary instruments do distinguish the two procedures.79 Article 11 of the International Convention for the Prevention of Pollution from Ships (MARPOL) provides an early example of transparency through the exchange of information.80 It requires States parties to communicate to the IMO relevant laws and regulations, nominated surveyors, specimens of ship certificates, available reception facilities, official reports illustrating the results of the application of the Convention and annual statistical reports and information on penalties imposed for violations of the Convention.81 This information, except for national legislation, is circulated to other parties by the IMO.82 The procedure links to one of the purposes of the IMO, i.e. to ‘provide for the exchange of information among Governments on matters under

78

79

80

81

Also see Jørgen Wettestad, ‘Monitoring and Verification’, in Bodansky/Brunne´e/Hey, Oxford Handbook 2007 (n 10), 974–994. See e.g. CBD, 1992 (n 40), art. 17 and UNFCCC, 1992 (n 26), art. 7.2(b), on exchange of information; and CBD, 1992 (n 40), art. 26 and UNFCCC, 1992 (n 26), art. 12, on reporting. International Convention for the Prevention of Pollution from Ships, 2 November 1973, 1340 UNTS 184 (MARPOL); and Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973, 17 February 1978, 1340 UNTS 61. MARPOL, 1973 (n 80), art. 11(1). 82 Ibid., art. 11(2).

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consideration by the Organization’,83 but does not provide a mechanism for monitoring compliance. Similarly, the original version of the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention) required parties to report on their implementation of the Convention,84 but did not envisage a procedure for monitoring compliance, beyond the requirement that the meeting of the parties would receive and consider such reports.85 Only in 2007, after the entry into force of the 1996 Protocol to the London Convention,86 was a compliance procedure established.87 An early example of transparency requirements related to monitoring implementation is article 8 of CITES. It requires State parties to prepare an annual report on certified trade in endangered species and a biennial report on legislative and administrative steps taken to enforce the Convention. These reports are studied by the CITES secretariat, which may request further information.88 The secretariat, ‘in the light of information received is satisfied that any species included in Appendix I or II is being affected adversely by trade in specimens of that species or’ that trade is adversely affecting listed species or ‘that the provisions of the present Convention are not being effectively implemented, (. . .) shall communicate such information to the’ party or parties involved.89 The latter are to submit relevant information and identify remedial measures, which are reviewed at the next COP.90 CITES also determines that the reports ‘shall be available to the public where this is not inconsistent with the law of the Party concerned’.91 CITES thus clearly makes the link between transparency and monitoring implementation. It has also, on the basis of article 9(2)(h), developed a system for exchanging scientific and technical information, with its data-bases on endangered species and trade in these species functioning as a clearing-house mechanism.92 83

84

85 86

87

88 91 92

See Convention on the International Maritime Organization, 6 March 1948, 289 UNTS 3, art. 1(e). Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 29 December 1972, 1046 UNTS 120 (London Convention), art. VI(4). Ibid., art. XIV(4)(c). 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 7 November 1996, 36 ILM 1. See ‘Compliance Procedures and Mechanisms Pursuant to Article 11 of the 1996 Protocol to the London Convention’, 9 November 2007, available at: www.imo.org, annex 7. CITES, 1973 (n 39), art. 12(2)(d). 89 Ibid., art. 13(1). 90 Ibid., art. 13. Ibid., art. 8(8). See CITES, ‘Trade Database’, available at: www.cites.org/eng/resources/trade.shtml; and CITES, ‘Species Database’, available at: www.cites.org.

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Decisions of a COP may also stipulate that information be made available for purposes of monitoring compliance. The COP of the United Nations Convention to Combat Desertification (CCD),93 for example, in its ten-year strategic plan, adopted in 2007, included a mandate for its Committee for the Review of the Implementation of the Convention to develop a more effective reporting and review process.94 This mandate has resulted in a new process, in which, in addition to States, civil society organizations participate by reporting on best practices and their activities.95 The foregoing examples illustrate that MEA reporting requirements are linked to monitoring implementation. The CITES website on reporting explicitly refers to this role;96 the CBD specifies it as the aim of the periodic reporting system.97 The reporting and verification requirements contained in articles 7 and 8 of the Kyoto Protocol offer another example.98 In accordance with article 7, each annex I party is to annually submit an inventory of anthropogenic emissions by source and removals by sinks of greenhouse gases. The secretariat reviews all annual reports to determine whether they are complete and meet relevant reporting requirements.99 Based on article 8, this information is transmitted to and reviewed by an expert review team, which reports to the COP on its assessment of a party’s implementation of the protocol and identifies potential implementation problems. The secretariat subsequently lists any question regarding implementation identified by the expert review team for consideration by the 93

94

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96 97 98

99

Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, 14 October 1994, 1954 UNTS 3 (CCD). CCD, Report of the Conference of the Parties on its Eighth Session, Held in Madrid from 3 to 14 September 2007, Addendum, Part Two: Action Taken by the Conference of the Parties at its Eighth Session, ICCD/COP(8)/16/Add.1, 23 October 2007, decision 3/COP.8, respectively annex, para. 16(c)(ii). See CCD, Report of the Conference of the Parties on its Tenth Session, held in Changwon from 10 to 21 October 2011, Part Two: Action Taken by the Conference of the Parties at its Tenth Session, Addendum, ICCD/COP(10)/31/Add.1, 6 February 2012, Decision 14/COP.10; also see CCD, ‘Reporting and Review Process 2012–2013’, available at: www.unccd.int; and CCD, ‘Reporting Entities’, available at: www.unccd.int. See CITES, ‘Reporting under the Convention’, available at: www.cites.org. CBD, 1992 (n 40), art. 26. For detailed assessment of this review process, see Anke Herold, ‘Experiences with Articles 5, 7 and 8 Defining the Monitoring and Verification System under the Kyoto Protocol’, in Jutta Brunne´e/Meinhard Doelle/Lavanya Rajamani (eds.), Promoting Compliance in an Evolving Climate Change Regime (Cambridge University Press, 2012), 122–146. Ibid., 136–137.

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COP.100 All these reports are publicly available on the UNFCCC website.101 The expert review teams and the UNFCCC secretariat, as its CITES counterpart, thus have a role in monitoring implementation, one that extends beyond the transferring of information between the parties to the ordering and assessing of information, which may have far-reaching implications. Questions of implementation identified by an expert review team and listed by the secretariat, for example, result in emission reduction units obtained through transfers not counting towards an annex I party’s commitment under article 3 of the Kyoto Protocol until the compliance issue has been resolved.102 The focus on reporting as a tool for monitoring implementation and compliance has resulted in the secretariats of MEAs evolving from facilitators in the exchange of information among State parties to actors who participate in assessing the performance of State parties, often assisted by experts. Both secretariats and experts function as neutral agents who serve to enhance the credibility of the information that forms the basis for further decision-making in MEAs and by individual States. Compliance mechanisms, again involving neutral agents in monitoring compliance, also play this role.103 Finally, producing the information required by IEIs, MEAs in particular, presents a challenge for any State, but especially for developing States.104 For example, in 2008, only 20% of the parties to the London Convention submitted the required reports.105 Under the CBD, 171 of the 193 parties to it submitted their fourth National Report in 2009, but only 22 parties did so on time.106 Given the difficulties that many developing States face in generating the required information, IEIs usually have programmes that assist developing States in preparing national reports and other information required.107 100 101

102 103

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105 106 107

Kyoto Protocol, 1997 (n 27), art. 8(3). Herold, ‘Experiences’ 2012 (n 98), 137; and see UNFCCC, ‘National Communications Annex I’, available at: http://unfccc.int. Kyoto Protocol, 1997 (n 27), art. 6(4). See Tullio Treves et al. (eds.), Non-Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements (The Hague: T.M.C. Asser Press, 2009). On MARPOL, see e.g. Saiful Karim, ‘Implementation of the MARPOL Convention in Developing Countries’, Nordic Journal of International Law 79 (2010), 304–337. See table available at www.imo.org. See CBD, ‘National Reports’, available at: www.cbd.int. See, e.g., for a list of relevant instruments for the CBD: www.cbd.int/nbsap/guidancetools/finance/.

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Engaging the Private Sector: Naming and Shaming and Privatization

IEIs, MEAs in particular, also use transparency requirements to address the potential negative environmental consequences of international activities by private actors, trade in particular. In doing so, MEAs engage with the private sector, even if the primary responsibilities rest on States. Three types of transparency mechanisms involving private actors can be distinguished. First, where international regulations are in place, MEAs may require State parties to ensure that private actors present evidence of their compliance with those regulations. Second, in case of non-compliance with applicable regulations, MEAs may require information about the non-compliant actor to be made public or shared with other States. Third, MEAs may require that either the State of export or a private actor communicate information about a traded product to the State of import. The latter approach is generally known as a prior informed consent (PIC) procedure. The first and second types of transparency mechanism may operate in tandem with each other, for example, regarding shipping. In case of vessel source pollution, MARPOL requires ships that are subject to certification under its regulations to have those certificates on board for inspection by port State authorities.108 It also requires State parties to report incidents involving harmful substances and maritime casualties.109 The lack of certificates and the casualty reports must be reported to a ship’s flag State and, and in case of casualty reports, to other States concerned. It also requires State parties to report incident and casualty reports to the IMO. Such reports are not available to the public on the IMO website.110 Regional port State control mechanisms, however, do publicize non-compliance by ships with relevant international regulations.111 Under, for example, the Paris Memorandum on Port State Control (Paris MOU), ships calling at a member State port are inspected for compliance with IMO and International Labour Organization conventions related to ship safety, vessel source pollution and on-board labour conditions. Compliance problems are listed in the 108 110

111

MARPOL, 1973 (n 80), art. 5(1). 109 Ibid., respectively arts. 8, 12 and 11. For one such format, see IMO, Casualty Related Matters, Reports on Marine Casualties and Incidents: Harmonized Reporting Procedures – Reports Required under SOLAS Regulation I/21 and MARPOL, Articles 8 and 12, MSC-MEPC.3/Circ.3, 18 December 2008. For the Paris Memorandum of Understanding on Port State Control, see www.parismou.org/; for a list of the other eight regional port State control mechanisms see www.parismou.org/.

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publicly accessible ship- and company-databases that are maintained under the Paris MOU, as are ships that are detained or banned due to non-compliance.112 Similarly, the UN Food and Agriculture Organization (FAO) operates the High Seas Vessel Authorization Record (HSVAR) on the basis of article VI of the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Compliance Agreement).113 The HSVAR aims to address illegal, unreported and unregulated fishing on the high seas by making available information about vessels that engage in such practices. It contains information about the registration of fishing vessels, fishing licences and activities by fishing vessels that undermine international conservation and management measures. This information is to be submitted by the parties to the Compliance Agreement. HSVAR is accessible to parties that submit information, but not to the public. HSVAR has been moderately successful in obtaining the relevant information from States. The FAO reports that of the fifty-eight States parties to the Compliance Agreement only forty States have ever submitted data and that only eight States regularly submit updates.114 PIC-procedures that engage the private sector operate under the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention),115 and the Cartagena Protocol on Biosafety to the Convention on Biological Diversity (Cartagena Protocol).116 In a nutshell, PIC-procedures require that the 112 113

114 115

116

See Paris MOU, ‘Inspection Efforts’, available at: www.parismou.org. Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, 24 November 1993, 33 ILM 968. See www.fao.org/fishery/collection/hsvar/en. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 22 March 1989, 1673 UNTS 126; see www.basel.int. Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 29 January 2000, 2226 UNTS 208; see http://bch.cbd.int/protocol/. In addition, the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, 10 September 1998, 2244 UNTS 337, also utilizes what is also known as a PIC-procedure. It, however, is inter-State in nature, even if it generates important information about import regulations for traders in chemicals and pesticides. See www.pic.int. The Stockholm Convention on Persistent Organic Pollutants, 22 May 2001, 2256 UNTS 119, furthermore links in to other MEAs which operate PIC-procedures, the Rotterdam Convention, 1998, in particular. See http://chm.pops.int; see Stockholm Convention, 2001, art. 3(2)(b). On PIC-procedures in general, see David Langlet, Prior Informed Consent and Hazardous Trade (Alphen aan den Rijn: Kluwer Law International, 2009).

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State of export or an exporter operating under its jurisdiction must make available to the State of import information about the product that is being traded. The State of import, based on that information, has the option of allowing, prohibiting or conditioning the introduction of the product. PIC-procedures may be difficult to implement for States that do not possess the expertise, capacity or technology required to properly assess the information submitted to them. The Basel Convention recognizes this fact by stipulating that the State of export shall not allow the shipment to proceed unless it has a confirmation in writing that the trader has received (1) the written consent of the State of import and (2) a ‘confirmation of the existence of a contract between the exporter and the disposer specifying the environmentally sound management of the wastes in question’.117 The first condition ensures that the State of import retains maximum control over movements of hazardous wastes into its territory. The second condition enables the State of export to assess the waste treatment facilities in the importing State, thereby potentially limiting the discretion of the State of import to regulate the treatment of waste in its territory. The Cartagena Protocol determines that failure of a State of import to acknowledge or reply to a notification of the intended import of living modified organisms for intentional introduction into the environment (LMOs) and living modified organisms intended for direct use for food, feed, or processing (LMO-FFPs) shall not be taken to imply its consent.118 Contrary to the Basel Convention, the Cartagena Protocol, however, does not explicitly prohibit the transfer of LMOs and LMO-FFPs in the absence of a reply to a notification. The PIC-procedure under the Cartagena Protocol, known as the Advance Informed Agreement procedure, can be arduous for developing States because importing States have to assess the risks involved in importing LMOs and LMO-FFPs.119 Such risk assessments are to be conducted in accordance the criteria set out in annex III to the Cartagena Protocol as well as further guidance developed under the protocol.120 For 117 118 119 120

Basel Convention, 1989 (n 115), art. 6(3)(a) and (b). See Cartagena Protocol, 2000 (n 116), arts. 9(4), 10(5) and (11)7. See ibid., respectively art. 10(1) juncto art. 15 and art. 11(4) and art. 6(a). For relevant documents see CBD, ‘Relevant Documents on Risk Assessment’, available at: http://bch.cbd.int; also see Aarti Gupta, ‘Transparency as Contested Political Terrain: Who Knows What about Global GMO Trade and Why Does it Matter?’, Global Environmental Politics 10 (2010), 32–52.

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LMO-FFPs, assessments may be carried out on the basis of national legislation consistent with the protocol.121 The importing State may require the exporter to finance or conduct the risk assessment for LMOs.122 For LMO-FFPs, a party may indicate that it requires financial and technical assistance and capacity-building.123 While these provisions serve to facilitate implementation of the Cartagena Protocol by developing States, they also illustrate that transparency alone does not necessarily generate their meaningful participation. PIC-procedures involve large amounts of information, in particular for importing States. Such information often is generated with the involvement of exporters. In addition, importing States have to substantiate their decisions to ban or condition the import of products, leading to further information requirements. Both the often imbalanced capacities of exporters and some developing States, and the limited capacity of some developing States to properly manage a PIC-procedure where they are the exporters of the products involved, raise concerns. These concerns have prompted relevant MEAs to develop not only capacitybuilding programs but also information-sharing mechanisms that aim to foster transparent decision-making. Under the Cartagena Protocol, for example, all notifications by importing States are available through its biosafety clearing-house mechanism and accessible to the public.124 IEIs through transparency mechanisms thus involve the private sector by ‘naming and shaming’ non-compliant actors and by transferring some of the responsibilities regarding the provision of information to the private sector. The ‘naming and shaming’ effect, of course, is greater where the information is made publicly available, such as under the Paris MOU, as opposed to HSVAR, were the information is available only to participating States. Both systems contrast with the system in place under CITES, which serves to ‘name and shame’ State parties, and not traders, by publishing suspension notices issued by the COP or the Standing Committee.125 These notices recommend the suspension of trade with explicitly named State parties that are not in compliance with CITES. The involvement of the private sector in PIC-procedures and their role in the exchange of information with the importing State remains controversial, especially where least-developed States are concerned. 121 123 125

Cartagena Protocol, 2000 (n 116), art. 11(4). 122 Ibid., art. 15(2) and (3). Ibid., art. 11(9). 124 Biosafety Clearing-House, available at: http://bch.cbd.int/. See CITES, ‘Reference List’, available at: www.cites.org.

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4. Conclusion This chapter illustrates that a variety of transparency mechanisms have emerged in IEIs, reflecting well-established practices, even if, as observed by Alan Boyle and Kasey McKall-Smith in this volume,126 no general right of non-State actors to access to information from or participation in IEIs has evolved. Still, as the recent push by the IWC to enhance the transparency of its proceedings serves to illustrate, ‘international good practice’ has become sufficiently well-established to make it difficult for any IEI to deviate significantly from that practice. The salient practices include access to information and deliberations for States, including those that are not members of an IEI or its bodies of limited composition, as well as for non-State actors. Relevant information must be provided at all stages of decision-making, including in the generation of scientific data and in the compliance phase. In some cases, the private sector too is caught by information requirements. Electronic communication, the internet in particular, has been crucial in facilitating this (r)evolution of international environmental governance. In modern international environmental governance, transparency mechanisms serve to foster input and output legitimacy by both promoting transparency of governance and using transparency instrumentally for governance. More fundamentally, these mechanisms are indispensable in building the necessary shared understandings among very different actors with a large range of interests. Transparency is also a precondition for IEI governance anchored in law. The legality requirements that we highlighted earlier in this chapter, such as promulgation, clarity and predictability, are inextricably tied to transparency of governance – they are at once designed to promote transparency and undercut by lack of transparency. In turn, transparency through exchange of information about implementation and compliance reveals and promotes the congruence between promulgated norms and actions that is needed to maintain shared legal understandings. Similarly, transparency mechanisms that engage the private sector suggest means of attaining congruence between IEI norms and actions by the private sector. Both of these instances of transparency for governance feed back into transparency of governance by promoting trust among participants in an IEI. In so doing, they help maintain the preconditions for the continued 126

Alan Boyle/Kasey McCall-Smith, ‘Transparency in International Law-Making’, chapter 16 in this volume.

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development of governance that meets the standards of legality. In other words, both transparency of governance and transparency for governance are indispensable if IEIs are to facilitate interactions that build and sustain legality. Notwithstanding the significant improvements in the transparency of IEI governance, challenges remain. In most IEIs, access to information and participation is still left to the discretion of the institution or its member States. This state of affairs has prompted calls for further strengthening of transparency mechanisms. For example, the parties to the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, discussed elsewhere in this volume,127 decided to actively promote the application of the convention’s principles in other international forums. They called for further development of policies and procedures on access to environmental information and ‘transparent and clearly stated standards’ for public participation in ‘all relevant stages of the decision-making process’ in IEIs.128 But our analysis also illustrates that IEIs face challenges that cannot be overcome through transparency mechanisms alone. These challenges surface especially in the North– South context, relating to the uneven playing field between developed and developing States, and may involve the private sector. IEIs have developed responses to some of these challenges, certain of which remain contested, as our examination of the PIC-procedure under the Cartagena Protocol demonstrates. 127

128

Jonas Ebbesson, ‘Global or European Only?: International Law on Transparency in Environmental Matters for Members of the Public’, chapter 3 in this volume. See UN, Economic Commission for Europe, Report of the Second Meeting of the Parties, Addendum, Decision II/4: Promoting the Application of the Principles of the Aarhus Convention in International Forums, ECE/MP.PP/2005/2/Add.5, 20 June 2005, annex, guideline 29.

3 Global or European Only? International Law on Transparency in Environmental Matters for Members of the Public jonas ebbesson

1. Dimensions of Transparency in Environmental Matters International law on transparency in environmental matters reflects the general shift of international law, from essentially an inter-State affair concerned with inter-State relations to one of multiple actors, including members of the public, and also pertaining to issues that were previously perceived as purely domestic. All environmental treaties include some form of inter-State requirement with a bearing on transparency. Hence, reporting obligations, verifications procedures, notifications schemes, peer review systems and compliance mechanisms serve the purpose of gathering, disseminating, processing and reviewing adequate information on States’ behaviour.1 At best, such transparency requirements foster not only effective compliance with treaty obligations, but also more effective international environmental governance in general,2 and sustain trust among the parties.3 While these ‘horizontal’ transparency obligations in environmental contexts remain as important as ever, this chapter explores another, 1

2

3

For a survey of compliance mechanisms in environmental agreements, see Tullio Treves et al. (eds.), Non-compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements (The Hague: TMC Asser Press, 2009). See Jutta Brunne´e/Ellen Hey, ‘Transparency and International Environmental Institutions’, chapter 2 in this volume. Abram Chayes/Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge Mass.: Harvard University Press, 1995) set out a theoretical basis for transparency in international law and also provide examples of means to promote transparency in environmental and other contexts. Ronald B. Mitchell, ‘Compliance Theory: A Synthesis’, Review of European Community and International Environmental Law 2 (1994), 327–334.

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‘vertical’, dimension, where international law obliges States to ensure transparency in environmental matters for members of the public. The four major United Nations conferences on environmental matters – UN Conference on the Human Environment, Stockholm 1972; UN Conference on Environment and Development, Rio de Janeiro 1992; World Summit on Sustainable Development, Johannesburg 2002; and UN Conference on Sustainable Development (‘Rio+20’), Rio de Janeiro 2012 – signify the increasing attention to transparency in international environmental discourse, policy formation and – possibly – law. While there is hardly any explicit reference to ‘transparency’ or related concerns in the 1972 Stockholm Declaration or Plan of Action at all,4 there are numerous calls for transparency in Agenda 21, the action plan adopted at the 1992 Rio Conference. In particular, it accentuates transparency with respect to the use of trade measures in environmental policy,5 but it also addresses transparency in (environmental) governance more broadly, with respect to administration,6 risk management,7 and corporate activities.8 Moreover, the Rio Declaration was instrumental for expanding the debate and policies on public access to information and public participation in decision-making in environmental matters. The 2002 Johannesburg Plan of Implementation also refers frequently to transparent regulations and transparent governance,9 and expands the approach to transparency to include areas such as international financial and trade institutions, water supply, water and health education, accountability of the corporate sector and consumer information as a means for sustainable consumption.10 Moreover, the Plan of Implementation generally endorses transparency and public participation in decision-making,11 but without adding new aspects or developing the concepts, compared to 1992. The outcome document of the 2012 4

5

6 7 9

10 11

UN, Report of the United Nations Conference of the Human Environment, A/CONF/ 48/14/Rev.1, Stockholm, 5–16 June 1972, chs. 1 and 2. UN, Report of the United Nations Conference on Environment and Development, A/ CONF.151/26 (vol. I), Rio de Janeiro, 3–14 June 1992, annex II: Agenda 21, paras. 2.11, 2.16, 2.22(b), (i) and (k), 17.118 and 39.3(d). Ibid., paras. 2.38(b), 8.4(e), 33.14(a)(iii), 38.2 and 40.25. 8 Ibid., paras. 16.29 and 35.7(h). Ibid., paras. 8.48 and 20.14(f). UN, World Summit on Sustainable Development, Report of the World Summit on Sustainable Development, A/CONF.199/20, Johannesburg, South Africa, 26 August–4 September 2002, ch. 1(2): Plan of Implementation of the World Summit on Sustainable Development. See ibid., e.g. paras. 15(e), 20(o), 26(g), 30(c), 47(b), 62(g), 66(a) and 86(a), (b) and (e). Ibid., paras. 80, 126, 139(g), 141 and 164.

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Rio+20 Conference, ‘The Future We Want’, includes plenty of references to transparency as well, albeit of general, watered-down and noncommitting character.12 It also encourages action at regional and national level to promote access to information, public participation and access to justice in environmental matters.13 Most of these references to transparency in environmental matters have had little, if any, real impact on international law. Principle 10 of the 1992 Rio Declaration is an exception, as it would influence the development of international law on transparency through access to information, public participation in decision-making and access to justice.14 Transparency in environmental matters would also be fostered by effective regulation and good governance, through international schemes for verification, openness and auditing, not least with respect to climate change. Yet, these appeals to good governance, also in relation to sustainable development,15 have had less impact on international law and transparency in environmental matters than the principles on public 12

13 14

15

UN, Rio+20: United Nations Conference on Sustainable Development, The Future We Want, A/CONF.216/L.1, 19 June 2012, paras. 10, 19, 65, 67, 75, 76(d), 76(g), 76(h), 77, 85(h), 86, 88(h), 117, 172, 173, 228, 248, 258, 259, 282 and 283. Ibid., para. 99. UN, Report of the United Nations Conference on Environment and Development, 1992 (n 5), annex I: Rio Declaration on Environment and Development, principle 10 reads: ‘[e]nvironmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided’. For context, see e.g. Jonas Ebbesson, ‘The Notion of Public Participation in International Environmental Law’, Yearbook of International Environmental Law 8 (1997), 51–97. The UN, Johannesburg Plan of Implementation, 2002 (n 9), para. 4, sets out that ‘good governance (. . .) is essential for sustainable development’, and links the concept to ‘sound environmental, social and economic policies, democratic institutions responsive to the needs of the people, the rule of law, anti-corruption measures, gender equality and an enabling environment for investment’ at the domestic level. Also International Monetary Fund, Good Governance: The IMF’s Role (Washington DC: International Monetary Fund, 1997); OECD, ‘Engaging Citizens in Policy-making: Information, Consultation and Public Participation’, July 2001, available at: www.oecd.org; and OECD, ‘Principle Elements of Good Governance’, available at: www.oecd.org, which include accountability, transparency, efficiency and effectiveness, responsiveness, forward vision and rule of law.

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participation. Calls for transparency in private corporations, to ensure effective environmental performance and accountability, have had even less influence on international law, considering the impact of the corporate sector on the environment and the international dimension of these concerns. Privatization of resources, services and functions related to natural resources and the environment, unless accompanied with requirements for openness and public access to information, may reduce the scope of transparency and citizens’ control considerably.16 Moreover, transparency requirements are instrumental for effective public control of corporations operating in multiple States and acting across State borders. Still, international standards for transparency and disclosure for multinational corporations have only been adopted in policy documents and guidelines, but not yet incorporated into legally binding treaty arrangements.17 In focusing on transparency through access to information, public participation and access to justice, aspects of transparency, as a part of good governance and with respect to private actors, are essentially left out in this chapter.18

2. Transparency in Environmental Matters: What, Why, Where and How? I understand transparency as referring both to public access to information and data as such, and to public access to decision-makers, decision-making procedures and institutions. Access to environmental information is a form of transparency, and it also promotes transparency in the second respect, by exposing the bases for decision-making and indeed the decision themselves. The degree and range of transparency depend on the scope of information to be made available, and on the means to 16

17

18

Jonas Ebbesson, ‘Public Participation and Privatisation: An Assessment of the Aarhus Convention’, Erasmus Law Review 4 (2011), 71–89. See OECD, OECD Principles of Corporate Governance (Paris: OECD, 2004), setting out ‘Disclosure and Transparency’ as one of six key principles for corporate governance. OECD, OECD Guidelines for Multinational Enterprises (Paris: OECD, 2011). For links between environment protection and transparency in corporate governance, see UN, Agenda 21, 1992 (n 5), paras. 8.48 and 20.14(f); UN, Johannesburg Plan of Implementation, 2002 (n 9), paras. 18, 46(a) and 140(f). See, however, Larry Catá Backer, ‘Transparency and Business in International Law: Governance between Norm and Technique’, chapter 18 in this volume; Peter H. Sand, ‘The Right to Know: Freedom of Environmental Information in Comparative and International Law’, Tulane Journal of International and Comparative Law 20 (2011), 203–232.

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enforce public access to it. While the opportunity for public participation in decision-making matters for transparency, transparency does not imply participation. Decision-making could be fairly transparent without necessarily allowing for the public to be part of, and voice its concerns about, the decision-making. Nevertheless, transparency is critical for effective participation. Access to information, public participation and access to justice in environmental matters also reflects the notion of the rule of law in environmental governance,19 and transparency is a crucial element for the rule of law.20 Adequate environmental information reveals the state of the environment and public health, it informs about harmful activities, the social impacts of environmental harm, whether members of the public are exposed to threats, and about the general status of ecosystems. Access to environmental information is critical for public participation in environmental decision-making, for citizens’ ‘right-to-know’ about the state of health and environment as well as about the effectiveness of the public administration in charge of protecting health and environment, and for making the public administration accountable. Public participation in decision-making promotes transparency if members of the public can challenge the validity and accuracy of the information provided and people’s participation is used as a basis for decisions. Ideally, this contributes to better environmental decisions, to higher quality in the public administration, and again to making the public administration accountable. Finally, access to effective review procedures and remedies (access to justice) to challenge administrative decisions and appeal refusals by administrative authorities to disclose information, may result in increased access to the information in question. Effective review procedures may also reveal procedural errors, inadequate background information and incorrect application of environmental principles by the responsible authorities. Thus, erroneous decisions, acts and omissions can be corrected, and even the awareness of such correction may

19

20

Jonas Ebbesson, ‘The Rule of Law in Governance of Complex Socio-ecological Changes’, Global Environmental Change 20 (2010), 414–422. The notion of the rule of law also influenced the negotiations of the Aarhus Convention; see Stephen Stec, ‘Ecological Rights Advancing the Rule of Law in Eastern Europe’, Journal of Environmental Law and Litigation 13 (1998), 275–358. Jutta Brunne´e/Ellen Hey, ‘Transparency and International Environmental Institutions’, chapter 2 in this volume.

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influence the attitude of public authorities, e.g. when considering a refusal to disclose information. None of these rationales for transparency through access to information, participation in decision-making and access to justice necessarily explains the international dimension and why international law is engaged with these issues in the first place. While the international dimension is apparent in the case of international environmental institutions, one could possibly argue that transparency in national environmental law and governance, and in the national administrations, is a matter for each State to deal with as it wishes.21 First, since States’ and other actors’ environmental performance reaches across State borders, the concerns for transparency expand outside each specific State. States as well as members of the public have a legitimate interest in accessing information concerning, for instance, industrial activities in neighbouring States, that may affect their living environment, but also to ensure that the government and public administration in the State of the activity does its job in controlling such activities. Second, international trade in chemicals and hazardous products, and the expansion across State borders of corporations with environmental impact, explain the calls for international transparency standards. Third, transparency in the administrations of States affects the degree of transparency of international environmental governance and institutions as well. The interdependencies between States and non-State actors in international environmental institutions are complex and complicated,22 and transparency vis-à-vis members of the public also promotes transparency between States. Fourth, as with international human rights law, the very perception of what is a national concern, regardless of any transboundary bio-physical effects, may change. In all, something that was once understood as a national concern may call for ‘larger-than-national-conceptions’ because national law, due to its bound nature, cannot cover all the conduct harmful to the nation’s citizens, and multiple national legal systems tend to clash.23 Transparency in environmental contexts is a candidate for such re-thinking. 21 22

23

See Ebbesson, ‘Notion of Public Participation’ 1997 (n 14). Jutta Brunne´e/Ellen Hey, ‘Transparency and International Environmental Institutions’, chapter 2 in this volume. See Eleanor M. Fox, ‘Global Markets, National Law, and the Regulation of Business – A View from the Top’, in Michael Likosky (ed.), Transnational Legal Processes – Globalisation and Power Disparities (London: Butterworths, 2002), 135–147.

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Having identified the ‘whys’ for international law on transparency in environmental matters, what about the ‘wheres’ and ‘hows’?24 Despite some global agreement on the value and usefulness of access to information and public participation in environmental matters, the development of international law is regionally asymmetric, quite fragmentary, and far from consistent. This development has mainly taken place in Europe and central Asia, where the 1998 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention)25 and the European Convention (and Court) of Human Rights are the drivers. In my analysis of the transparency requirements and compliance control, I will essentially consider these two parallel regimes. This common development of international law in Europe and central Asia results from two international institutions: the UN Economic Commission of Europe (UNECE) and the Council of Europe. The Soviet Union was a member of the UNECE (so were and are the USA and Canada). After the breakdown of the Soviet Union, when the former regions became new, independent States, they remained in the UNECE as members. The Soviet Union was never a member of the Council of Europe, yet some of the new States, including Russia, later joined this organization. The UNECE administers the Aarhus Convention and some other environmental conventions which also promote transparency through requirements on accessibility of information and public participation.26 The Council of Europe is the home of the European Convention of Human Rights. Despite these common institutional platforms for Europe and central Asia, Europe rather than central Asia has been the mover for expanding 24

25

26

Ebbesson, ‘Notion of Public Participation’ 1997 (n 14); Sand, ‘The Right to Know’ 2011 (n 18). Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, 25 June 1998, 2161 UNTS 447 (Aarhus Convention). Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 17 March 1992, 1936 UNTS 269; Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 17 June 1999, 2331 UNTS 202; Convention on Transboundary Effects of Industrial Accidents, 17 March 1992, 2105 UNTS 457; and Convention on Environmental Impact Assessment in Transboundary Contexts, 25 February 1991, 1989 UNTS 309 and the related Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a Transboundary Context, 21 May 2003, ECE/MP.EIA/2003/2.

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transparency in the region. This European centre of gravity raises the question whether transparency through access to information and public participation in environmental matters is mainly a regional issue, and whether any ambition to globalize the issue, and any attempt to describe it as already being a global feature, is eurocentric. Even though the international political climate is different in other regions, this does not make transparency, access to information or public participation European issues only. Multilateral policy documents and environmental agreements, as well as jurisprudence of human rights bodies in North and South America and Africa, reveal that the issue is not only ‘European’. Moreover, as already mentioned, transparency in general as well as notions of access to information and public participation in environmental decision-making have been acknowledged in global policy documents and treaties, and for sure the debate on access to information, public participation and access to justice is global in scope. This brief survey of international environmental agreements and international human rights institutions, of global and regional scope, following the analysis of the European regimes, serves to show that international law on transparency in environmental matters, despite its fragmentary character, is not limited to Europe and central Asia.

3. Transparency in the Aarhus Convention and European Convention on Human Rights 3.1

Transparency in the Aarhus Convention

The Aarhus Convention minimum standards for access to information, public participation and access to justice impinge on transparency as well as environmental democracy, accountability of public authorities and the legitimacy of decision-making in the States concerned.27 The 27

Aarhus Convention, 1998 (n 24), preamble, para. 21 on strengthening democracy. See UN, ECOSOC, Economic Commission for Europe, Report of the First Meeting of the Parties, Addendum: Lucca Declaration, ECE/MP.PP/2/Add.1, 2 April 2004, para. 2: ‘[a]ccess to information, public participation and access to justice are fundamental elements of good governance at all levels and essential for sustainability. They are necessary for the functioning of modern democracies that are responsive to the needs of the public and respectful of human rights and the rule of law. These elements underpin and support representative democracy’. See also UN, ECOSOC, Economic Commission for Europe, Report of the Third Meeting of the Parties, Addendum: Riga Declaration, ECE/MP.PP/2008/2/Add.1, 28 September 2008, para. 9, where the parties agree that ‘[w]hen properly implemented, the right to information leads on the one hand

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aim to further accountability and transparency in decision-making,28 and the desirability of transparency in all branches of government, are set out in the Convention’s preamble and declarations by the parties,29 and are also evident in the general obligation, that the parties ‘establish and maintain a clear, transparent and consistent framework to implement the provisions of this Convention’.30 As with all legal frameworks, the performance of the Convention parties depends not only on the treaty text, but also on the system for compliance review and other factors. In addition to reporting requirements concerning the parties’ implementation,31 the parties’ performance with the Aarhus Convention is reviewed by the Aarhus Convention Compliance Committee (ACCC)32 on the basis of individual communications from members of the public.33 While the ACCC is forward-looking and intended to facilitate compliance, rather than a redress procedure for a specific violation or for harm caused by non-compliance,34 compliance control goes beyond fact-finding. It involves interpreting what is required by the Convention, and also concluding whether the parties meet what is required. The ACCC review allows for a detailed examination of

28 29 30 31

32

33

34

to more transparent, accountable government and on the other to a more informed, environmentally aware public’. Aarhus Convention, 1998 (n 24), preamble, paras. 10 and 21. Ibid., preamble, para. 11; and ECOSOC, Riga Declaration, 2008 (n 26), para. 9. Aarhus Convention, 1998 (n 24), art. 3(1) (emphasis added). Ibid., art. 10(2); and UN, ECOSOC, Economic Commission for Europe, Report of the First Meeting of the Parties, Addendum: Decision I/8, Reporting Requirements, ECE/ MP.PP/2/Add.9, 2 April 2004; supplemented by UN, ECOSOC, Economic Commission for Europe, Report of the Second Meeting of the Parties, Addendum: Decision II/10, Reporting Requirements, ECE/MP.PP/2005/2/Add.14, 13 June 2005. The Compliance Committee was established by UN, ECOSOC, Economic Commission for Europe, Report of the First Meeting of the Parties, Addendum: Decision I/7, Review of Compliance, ECE/MP.PP/2/Add.8, 2 April 2004. Cases can also be brought to the Committee’s review by the parties themselves as well as by the Convention secretariat. See Veit Koester, ‘The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention)’, in Geir Ulfstein/Thilo Marauhn/ Andreas Zimmermann (eds.), Making Treaties Work: Human Rights, Environment and Arms Control (Cambridge University Press, 2007), 179–217, 213–215; and Veit Koester, ‘Review of Compliance under the Aarhus Convention: A Rather Unique Compliance Mechanism’, Journal of European Environmental and Planning Law 2 (2005), 31–44. Dispute settlement by two parties can also be used to establish what is required by the Convention, although it is quite unlikely that it will be used by any party; see Aarhus Convention, 1998 (n 24), art. 16 and annex II. Koester, ‘Aarhus Convention’ 2007 (n 32), 197 and 209.

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compliance as well as for a closer look into the requirements of the Convention, and its findings and possible recommendations are forwarded to the Meeting of the Parties, which decides on endorsement. Such approvals by the Meetings of the Parties increase the normative value of the ACCC jurisprudence. The Meeting of the Parties also follows up on compliance with the findings of the ACCC. The ACCC has on several occasions concluded that Convention parties have failed to comply with the more general requirement of establishing and maintaining a clear, transparent and consistent framework to implement the Convention provisions, with respect, e.g., to confidentiality of and refusal of access to information,35 time frames and modalities for public participation,36 and costs for review procedures.37 The ACCC has then made recommendations on how to achieve a more transparent framework. The Aarhus Convention compliance system fosters transparency also by making, through the secretariat, publicly available all documents and information submitted by members of the public and convention parties in cases reviewed by the ACCC. In all, this system for compliance control is likely to have a positive impact on the parties’ performance and transparency of environmental law, decision-making and administration, as well as on public debate and awareness of compliance with the Convention.38 35

36

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38

UN, ECOSOC, Economic Commission for Europe, Report of the Compliance Committee on its Twenty-fifth Meeting, Addendum: Findings and Recommendations with Regard to Communication ACCC/C/2008/30 Concerning Compliance by the Republic of Moldova, ECE/MP.PP/C.1/2009/6/Add.3, 8 February 2011, para. 38. See UN, ECOSOC, Economic Commission for Europe, Report on the Seventh Meeting, Addendum: Findings and Recommendations with Regard to Compliance by Ukraine with the Obligations under the Aarhus Convention in the Case of Bystre Deep-water Navigation Canal Construction (submission by ACCC/S/2004/01 Romania and Communication ACCC/C/2004/03 by Ecopravo-Lviv (Ukraine)), ECE/MP.PP/C.1/ 2005/2/Add.3, 14 March 2005, para. 40; and UN, ECOSOC, Economic Commission for Europe, Report of the Compliance Committee, Addendum: Findings and Recommendations with Regard to Communication ACCC/C/2009/43 Concerning Compliance by Armenia (adopted by the Compliance Committee on 17 December 2010), ECE/MP.PP/2011/11/Add.1, 12 May 2011, para. 68. UN, ECOSOC, Economic Commission for Europe, Report of the Compliance Committee on its Twenty-ninth Meeting, Addendum: Findings and Recommendations with Regard to Communication ACCC/C/2008/33 Concerning Compliance by the United Kingdom of Great Britain and Northern Ireland, ECE/MP. PP/C.1/2010/6/Add.3, 24 August 2011, para. 140. See Ludwig Krämer, ‘Transnational Access to Environmental Information’, Transnational Environmental Law 1 (2012), 95–104.

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Transparency through Access to Information

Since the Aarhus Convention requirements on access to information pertain to ‘environmental information’, the reach of transparency depends on how such information is defined. It also depends on who is addressed by the obligation and on whether transparency implies only a passive obligation, or also an active element. As to the first issue, environmental information is defined rather broadly, as including not only data about the state of elements of the environment, but also information about, for instance, substances, activities, administrative measures, policies, decisions, plans and legislation, as well as analyses and assumptions used in environmental decision-making.39 On the second issue, the transparency requirements apply only to ‘public authorities’, which includes government at national, regional and other levels. Thus, the Aarhus Convention does not prescribe a general duty for private corporations to disclose information directly to members of the public upon request.40 Yet, when natural and legal persons, including corporations, have public responsibilities, or functions or public services in relation to the environment, they are perceived as public authorities. Therefore, in such situations they must also disclose environmental information upon request.41 This functional approach to defining ‘public authority’ makes the Aarhus Convention and the standards for access to information and transparency, at least to some extent, resilient to privatization of public services, responsibilities and functions.42 The presumption is that environmental information, including raw data, held by public authorities is publicly available. In response to a request for environmental information, public authorities must make the information available as soon as possible. While requests can only be refused on the grounds listed in the Convention, these grounds are rather general, so the risk is real that the parties try to stretch the exemptions in order to avoid disclosure. To somehow counter such stretches, the

39 40

41 42

Aarhus Convention, 1998 (n 24), art. 2(3). The Convention parties are only required to ‘encourage’ such operators to inform the public regularly about their impact; see ibid., art. 5(6); Michael Mason, ‘Information Disclosure and Environmental Rights: The Aarhus Convention’, Global Environmental Politics 10 (2010), 10–31, 10 and 13. Aarhus Convention, 1998 (n 24), art. 2(2). Ebbesson, ‘Public Participation and Privatisation’ 2011 (n 16).

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Conventions sets out that, when considering refusing the disclosure of information, the given grounds shall be interpreted in a restrictive way, taking into account the public interest served by the disclosure.43 Charges for supplying the information are only allowed as long as they do not exceed reasonable amounts. Based on communications from the public, the ACCC has found parties to fail to comply with the Convention standards on access to requested information, e.g. when ignoring or wrongfully denying requests for information,44 and it has held that copyright laws by no means justify a general exclusion of environmental impact studies from public disclosure, in particular when they are part of decision-making procedures.45 Both these findings are significant for transparency. The obligations of the parties are not limited to ‘passively’ disclosing information that the public authorities happen to keep. Rather, public authorities must gather, update and disseminate relevant environmental information, and make it effectively accessible to the public in transparent ways.46 This is further promoted by the establishment of nationwide, publicly available systems for pollution inventories and registers in electronic databases,47 and the duty is set out in much more detail by the 2003 Protocol on Pollutant Release and Transfer Registers to the

43 44

45

46

Aarhus Convention, 1998 (n 24), art. 4. See e.g. UN, ECOSOC, Economic Commission for Europe, Report of the Compliance Committee on its Twenty-sixth Meeting, Addendum: Findings and Recommendations with Regard to Communication ACCC/C/2008/24 Concerning Compliance by Spain, ECE/MP.PP/C.1/2009/8/Add.1, 8 February 2011, where Spain was found in noncompliance with art. 4, inter alia for ignoring requests for environmental information for three months, for failing to give reasons for the denial of access to information, and for imposing an unreasonable fee for copying documents. See also UN, ECOSOC, Economic Commission for Europe, Report of the Compliance Committee on its Twenty-eighth Meeting, Addendum: Findings and Recommendations with Regard to Communication ACCC/C/2009/36 Concerning Compliance by Spain, ECE/MP.PP/C.1/ 2010/4/Add.2, 8 February 2011. In UN, ECOSOC, Economic Commission for Europe, Report of the Compliance Committee, Addendum: Findings and Recommendations with Regard to Communication ACCC/C/2009/37 Concerning Compliance by Belarus (Adopted by the Compliance Committee on 24 September 2010), ECE/MP.PP/2011/11/ Add.2, 12 May 2011, Belarus was held in non-compliance with the Aarhus Convention for having failed to provide requested information. UN, ECOSOC, Economic Commission for Europe, Report by the Compliance Committee, Addendum: Compliance by Romania with its Obligations under the Convention, ECE/MP.PP/2008/5/Add.7, 16 April 2008, para. 29. Aarhus Convention, 1998 (n 24), art. 5. 47 Ibid., art. 5(9).

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Aarhus Convention.48 The collection and dissemination of information, not least via such registers, also gives the public access to information on the corporate impact on human health and the environment. Whether this may compensate for the Convention’s lack of transparency requirements for private corporations depends on how effective the authorities are in actually requesting, collecting and disseminating the information. Importantly, the parties are by no means prevented from introducing in their national law such direct transparency requirements for corporations, and some States have done so.49 And if they do, the Convention provisions on access to justice, below, also apply.

3.3

Transparency through Public Participation in Decision-making

Transparency in decision-making includes being informed in due time about the decision-making procedures, having access to relevant information during these procedures, and being informed about the outcome of the procedures. The Convention’s most detailed transparency requirements apply to decision-making concerning permits for specific activities and installations.50 The parties must ensure that the public concerned is informed early in the process, and in an adequate, timely and effective manner, e.g. about the proposed activity, the nature of the possible decision, the responsible authority, and the envisaged procedure.51 The respective authorities must keep the relevant information,

48

49

50 51

Protocol on Pollutant Release and Transfer Registers to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, 21 May 2003, MP.PP/2003/1. A separate Compliance Committee, with a rather similar mandate and competence to that of the Aarhus Convention, was established by UN, ECOSOC, Economic Commission for Europe, Report of the First Session of the Meeting of the Parties to the Protocol on Pollutant Release and Transfer Registers, Addendum: Declaration and Decisions Adopted by the Meeting of the Parties, ECE/MP.PRTR/2010/2/Add.1, 28 March 2011, Decision I/2: Review of Compliance. See the Norwegian Act 2003–05–09 No. 31 on Environmental Information, which introduced a right for members of the public to directly request information also held by private entities, relating to their activities and products; see Ebbesson ‘Public Participation and Privatisation’ 2011 (n 16), 78. Aarhus Convention, 1998 (n 24), art. 6. In UN, ECOSOC, Economic Commission for Europe, Report of the Compliance Committee, Addendum: Compliance by Lithuania with its Obligations under the Convention, ECE/MP.PP/2008/5/Add.6, 4 April 2008, the Compliance Committee

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and give the public access to all relevant information free of charge. In this context, the issue of ownership of information is not relevant, since the information used in the decision-making should be provided by the developer for that purpose.52 As mentioned, nor do copyright laws justify general exclusions of environmental impact assessment studies.53 Such studies and other information relevant to the decision-making must be made available to the public concerned free of charge and as soon as it becomes available in the public participation procedure.54 These requirements should be read in conjunction with the obligation to ensure opportunities for public participation ‘when all options are open and effective participation can take place’. Finally, the public must be informed about the decision taken by the public authority in question. Rather similar standards for transparency apply to decision-making concerning plans and programmes relating to the environment,55 whereas less strict requirements are set out for public participation in the preparation of regulations and generally applicable normative instruments. Yet, the parties must at least ensure that draft rules are published or otherwise made publicly known, so that the public is given an opportunity to comment on the proposal.56 Ideally, the standards for public participation in the different decision-making procedures, including access to all relevant information, should not only promote transparent and informed decisionmaking, but also promote transparent public authorities and governance more generally. Yet, ACCC findings have brought

52

53

54 55

56

concluded that Lithuania failed to comply with the Aarhus Convention because it did not inform the public in an adequate, timely and effective manner about the possibility to participate in the decision-making, for providing too little time for participation, and for making the developer rather than public authorities responsible for organizing public participation. Transparency issues were also raised in the mentioned cases ECOSOC, Economic Commission for Europe, Communication ACCC/C/2008/24 Spain, 2011 (n 43); and ECOSOC, Economic Commission for Europe, Communication ACCC/C/2009/37 Belarus, 2011 (n 43). See ECOSOC, Economic Commission for Europe, ACCC/S/2004/01 Romania and Communication ACCC/C/2004/03 Ecopravo-Lviv (Ukraine), 2005 (n 35), para. 31. ECOSOC, Economic Commission for Europe, Compliance by Romania, 2008 (n 44), para. 29. Aarhus Convention, 1998 (n 24), art. 6(2). Ibid., art. 7, requiring provisions for public participation during the preparation of plans and programmes within a transparent and fair framework. Ibid., art. 8.

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attention to failures by parties in ensuring transparency in some of these respects.57

3.4

Transparency through Access to Justice

As mentioned, access to review procedures can promote transparency; both general access to information, when requested from public authorities, and access to adequate information in decision-making procedures where members of the public participate. Adequate and effective review procedures and remedies should reverse wrongful denials of access to information and correct errors in environmental decision-making, e.g. when information has been withheld. The Aarhus Convention parties must ensure a judicial review procedure to any person who considers that his or her request for environmental information has been ignored or wrongfully refused or handled. While not necessarily warranting access to information, since it may be denied on certain listed grounds, such review procedures reduce the risk of excessive secrecy. Access to review procedures must also be ensured for decisions, acts and omissions relating to permits and permit procedures, and other acts and omissions, by private persons and public authorities, which contravene provisions of national law relating to the environment.58 Accordingly, members of the public should be able to challenge inadequate access to information also in other decision-making procedures (e.g. for plans and programmes, nature protection, marketing of chemicals, and emission trading) and other failures by public authorities. Moreover, review procedures must be available to challenge failures of private actors in reporting on their activities, and in directly disclosing information upon request by a member of the public, if the latter is provided for in national law. All such review procedures must provide ‘adequate and effective 57

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ECOSOC, Economic Commission for Europe, ACCC/S/2004/01 Romania and Communication ACCC/C/2004/03 Ecopravo-Lviv (Ukraine), 2005 (n 35); ECOSOC, Economic Commission for Europe, Compliance by Romania, 2008 (n 44); ECOSOC, Economic Commission for Europe, Communication ACCC/C/2008/24 Spain, 2011 (n 43); ECOSOC, Economic Commission for Europe, Communication ACCC/C/2009/37 (Belarus), 2011 (n 43); ECOSOC, Economic Commission for Europe, Communication ACCC/C/2009/36 Spain, 2011 (n 43). Aarhus Convention, 1998 (n 24), art. 9(2) and (3). Jonas Ebbesson, ‘Access to Justice at the National Level. Impact of the Aarhus Convention and European Union Law’, in Marc Pallemaerts (ed.), The Aarhus Convention at Ten: Interactions and Tensions between Conventional International Law and EU Environmental Law (Groningen: Europa Law Publishing, 2011), 245–270.

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remedies, including injunctive relief as appropriate’, and be ‘fair, equitable, timely and not prohibitively expensive’.59 The ACCC has found Convention parties not to comply with the standards for access to justice, in some cases with a bearing on transparency, e.g., for not providing a proper review procedure to challenge refusal of access to information,60 and for imposing too high costs for review procedures in general.61

3.5

Transparency in the European Convention on Human Rights

The European Convention on Human Rights (ECHR)62 predates the Aarhus Convention and, contrary to some other human rights treaties, it does not explicitly address environmental matters. Nevertheless, starting in the 1980s, the European Court of Human Rights (ECtHR) has in numerous cases applied the provision of the ECHR, in particular the right to respect for private and family life,63 also to matters relating to health and the environment. In doing so, it construes the right to respect to privacy and family life as also requiring informational and participatory rights in environmental matters. Its jurisprudence on access to information on environmental and health matters also builds on this notion, rather than on the right to hold and impart information, as a part of the right to freedom of expression.64

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Aarhus Convention, 1998 (n 24), art. 9(4). UN, ECOSOC, Economic Commission for Europe, Report of the Seventh Meeting, Addendum: Findings and Recommendations with Regard to Compliance by Kazakhstan with the Obligations under the Aarhus Convention in the Case of Information Requested from Kazatomprom (Communication ACCC/C/2004/01 by Green Salvation (Kazakhstan)), ECE/MP.PP/C.1/2005/2/Add.1, 11 March 2005; ECOSOC, Economic Commission for Europe, Communication ACCC/C/2008/30 Moldova, 2011 (n 34). ECOSOC, Economic Commission for Europe, Communication ACCC/C/2008/24 Spain, 2011 (n 43); ECOSOC, Economic Commission for Europe, Communication ACCC/C/2009/36 Spain, 2011 (n 43); UN, ECOSOC, Economic Commission for Europe, Report of the Compliance Committee on its Twenty-ninth Meeting, Addendum: Findings and Recommendations with Regard to Communication ACCC/ C/2008/27 Concerning Compliance by the United Kingdom of Great Britain and Northern Ireland, Adopted by the Compliance Committee on 24 September 2010, ECE/MP.PP/C.1/2010/6/Add.2, 24 August 2011; ECOSOC, Economic Commission for Europe, Communication ACCC/C/2008/33 United Kingdom, 2011 (n 36). European Convention on Human Rights, 4 November 1950, 213 UNTS 221. Ibid., art. 8. Ibid., art. 10. See, however, ECtHR, Sdrvzeni Jihoceshe Matky v. Czech Republic, Decision of 10 July 2006, Application No. 19101/03, and ECtHR, Tarasag A Szabadsagjogokert v. Hungary, judgment of 14 July 2009, Application 37374/05, indicating a move towards applying art. 10 as a basis for a right to access to information.

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In one of the ground-breaking cases for transparency in environmental governance, Guerra and Others v. Italy,65 the Court concluded that a State violates the right to respect for private and family life if the State fails to provide essential information about hazardous activities that enables members of the public to assess the risks they and their families might run. This implies not only a passive duty to disclose information that is available, but also a positive duty for the State to ensure that relevant information is made available, and a corresponding right of members of the public concerned to request and access such information. In other cases, the Court has concluded that in cases of dangerous activities, the public’s right to information may also be based on the protection of the right to life.66 The established jurisprudence implies a kind of ‘right-to-know’ for members of the public, as reflected, although in different ways, in the Aarhus Convention. Access to relevant information in decision-making is also emphasized by the Court in Taskin and Others v. Turkey,67 where it held that, when a State must determine complex issues of environmental and economic policy, the decision-making process must include appropriate investigations and studies in order to allow them to predict and evaluate the effects. The Court continued by stressing that ‘[t]he importance of public access to the conclusions of such studies and to information, which would enable members of the public to assess the danger to which they are exposed is beyond question’. In the same vein as the Aarhus Convention, but based on the human rights conception, the Court has also held that the right to respect for privacy and family life includes a right for the individuals concerned to appeal to the courts environmental decisions, acts or omissions where they consider that their interests or comments have not been given sufficient weight in the decision-making process.68 In this sense, transparency issues also in the context of the ECHR pertain to not only access to information as such, but also to participatory rights and the right to access to justice and a fair trial.

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ECtHR, Guerra and Others v. Italy, Judgment of 19 February 1998, Application No. 14967/89. European Convention on Human Rights, 1950 (n 61), art. 2; see ECtHR, Öneryildiz v. Turkey, Judgment of 30 November 2004, Application No. 48939/99. ECtHR, Taskin and Others v. Turkey, Judgment of 10 November 2004, Application No. 46117/99. Ibid.; ECtHR, Okyay and Others v. Turkey, Judgment of 12 July 2005, Application No. 36220/97; ECtHR, Giacomelli v. Italy, Judgment of 2 November 2006, Application No. 59909/00.

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3.6

Combined Effect on Transparency

The push for transparency in environmental matters in Europe and central Asia results from the combined effect of norms, actions and institutions. The Aarhus Convention and the European Convention of Human Rights are significantly different in structure and approach to defining rights for members of the public, but they have in common the possibility for members of the public to draw attention to poor compliance by the conventions’ parties. These reviews not only provide for the control of performance, but they also make it possible to apply the standards of the respective legal framework to specific situations, and – as shown by the European Court of Human Rights – to adapt the interpretation of the provisions in light of new social, technical, economic and environmental developments. Even though neither the system for compliance reviews nor the follow-up procedures on non-compliance by the ACCC can ensure full compliance with the prescribed transparency standards by the treaty parties, it is fair to say that the compliance review system helps by highlighting compliance flaws as well as keeping the issues of compliance control and compliance in general alive. So the right of members of the public to request examination of the parties’ performance implies in itself a form of transparency, in addition to promoting effective enforcement of transparency in the States involved. The link between the Aarhus Convention and the ECHR was evident already during the negotiation of the Aarhus Convention. Issues such as secrecy, political participation and fair trials are common in international human rights regimes, and the Aarhus Convention adapts and develops some of these conceptions to environmental matters and contexts.69 On the other hand, the ECtHR has made several references to the Aarhus Convention in its judgments.70 By embedding Aarhus Convention issues in the human rights regime, transparency in environmental matters is given an even stronger normative foundation in the region, which may spill over to other issue areas involving public interests and human rights. 69 70

Ebbesson, ‘Notion of Public Participation’ 1997 (n 14). ECtHR, Tâtar v. Romaina, Judgment of 27 January 2009, Application No. 67021/01; ECtHR, Brânduşe v. Romania, Judgment of 7 April 2009, Application No. 686/03; ECtHR, Sarno and Others v. Italy, Judgment of 10 January 2012, Application No. 30765/08; ECtHR, Ivan Atanasov v. Bulgaria, Judgment of 2 December 2012, Application No. 12853/03; and ECtHR, Grimkovskaya v. Ukraine, 21 July 2011, Application No. 38182/03, where the Court held that ‘72. Bearing those two factors and the Aarhus Convention (see paragraph 39) in mind, the Court cannot conclude that a fair balance was struck in the present case. 73. There has therefore been a breach of Article 8 of the Convention’.

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While not included in this chapter, the impact of European Union law for transparency in the EU member States should not be underestimated. European Union legislation, as well as the jurisprudence of the EU judiciary, has added significantly to improving implementation and compliance with the Aarhus Convention as well as with the ECHR. Thus, there are three inter- or supranational legal frameworks and three bodies to review compliance by the EU member States regarding transparency in environmental matters.

4. Transparency Elsewhere: Fragments or Trends? The call in the run-up to the 2012 Rio+20 Conference, for a global treaty to foster transparency through access to information, public participation and access to justice in environmental matters did not last in the outcome of the Conference.71 Yet, it encourages regional action to this effect. Moreover, norms on access to information and public participation are not completely absent even in environmental treaties of global reach, and they provide for transparency with different underlying ambitions and degree of details. At one end of the spectrum are agreements which promote access to information and public participation only in a rather general manner. The UN Framework Convention on Climate Change (UNFCCC) is a good example.72 The duties entailed by the provision on access to information and public participation do not even match principle 10 of the Rio Declaration.73 Essentially, the parties are obliged to ‘promote and facilitate’ public access to information on climate change and its effects, and public participation in addressing climate change and its effects, but without further specification or qualification.74 The 1997 Kyoto Protocol to the UNFCCC makes some references to transparency, verification and accountability with regard to the flexible mechanisms for implementation, but it adds nothing for transparency through public access to information and public participation.75 The 71

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See Rio+20, The Future We Want, 2012 (n 12), para. 99. See, however, Rio+20, ‘Brazil: Submission by Brazil to the Preparatory Process Rio+20 Conference’, 1 November 2011, available at: www.uncsd2012.org, ch. 4, para. P8.D., proposing such a global legal framework. United Nations Framework Convention on Climate Change, 9 May 1992, 1771 UNTS 107 (UNFCCC). UN, Rio Declaration, 1992 (n 14), principle 10. 74 UNFCCC, 1992 (n 71), art. 6. See Kyoto Protocol to the United Nations Framework Convention on Climate Change, 11 December 1997, 2303 UNTS 162, art. 10(e).

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current provisions could possibly be used as a platform for further development of joint rules and guidelines for transparency, but the parties to the climate change agreements have not made use of this opportunity. Rather, public access to information and public participation have played a surprisingly marginal, if any, role in the context of the climate change agreements. The treaty references to access to information and public participation may possibly be used to advocate for good climate governance more generally, but it is still doubtful whether they can provide a basis for citizens’ claims in national litigation on climate change matters. Other environmental treaties of global reach, with a focus on biodiversity,76 genetically modified organisms,77 desertification,78 hazardous chemicals,79 persistent organic compounds,80 nuclear safety,81 and radioactive wastes,82 are more specific than the UNFCCC in promoting access to information and public participation. To be sure, these agreements differ in the approach taken to access to information and public participation. Some conventions give preference to access to information, while others provide some basis for public participation. Although none of them warrants effective transparency, essentially leaving the parties to define how access to information or public participation is to be ensured, within their respective scope of application, these agreements nevertheless approve of some degree of transparency and public access to documents. Despite the recognition of principle 10 of the Rio Declaration, there is thus no global agreement that provides more broadly for transparency through access to information or public participation. What exists for 76 77

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Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79, arts. 13–14. Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 29 January 2000, 2226 UNTS 208, art. 23. In addition to the quoted requirements, the parties shall ‘endeavour to inform its public about the means of public access to the Biosafety Clearing-House’. Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, 14 October 1994, 1954 UNTS 3, arts. 5(d), 10, 16 and 19. Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, 10 September 1998, 2244 UNTS 337, art. 15. Stockholm Convention on Persistent Organic Pollutants, 22 May 2001, 2256 UNTS 119, art. 10. Convention on Nuclear Safety, 17 June 1994, 1963 UNTS 293, art. 16. Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, 5 September 1997, 2153 UNTS 303, arts. 6, 8, 13 and 15.

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global application, in addition to the mentioned conventions and UN action programmes, are the 2010 UNEP Guidelines for national legislation on access to information, public participation and access to justice in environmental matters. Significantly drawing on the Aarhus Convention, the Guidelines aim to promote effective implementation of principle 10 of the Rio Declaration.83 As the title of the UNEP Guidelines indicates, they are useful for developing national legislation on these issues, and on transparency,84 but they are not legally binding. While some support for transparency through access to information, public participation and access to justice can be found in international human rights regimes of global reach, this support, too, mainly stems from regional human rights bodies. So, despite some normative fragments to fostering access to information and public participation in environmental matters, the globally applicable environmental treaties and human rights instruments provide only limited support for international law on transparency vis-à-vis members of the public. Yet, for some regions, the requirements for transparency, access to information, public participation and access to justice are far more stringent, and, interestingly, the regional legal developments result from mutual influences of environmental regimes and human rights regimes. For other regions, still, international law remains a weak force in support of transparency in environmental contexts. Neither the USA nor Canada, while being members of the UNECE, took an active role in the negotiations of the Aarhus Convention; and none of them adhered to the Convention after its adoption. Yet, both countries, with Mexico, are bound by international standards for transparency, access to information, public participation and access to justice through the 1993 North American Agreement on Environmental Cooperation (NAAEC).85 One of the purposes of the NAAEC is to ‘promote transparency and public participation in the development of environmental laws, regulations and policies’.86 To this end, the parties 83

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UNEP, ‘Guidelines for the Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters’, November 2011, available at: www.unep.org. While the link between access to information and transparency is evident in the UNEP Guidelines, they also refer to transparency as a criterion for public participation (guideline 9) and access to justice (guideline 19). Commission for Environmental Cooperation, ‘North American Agreement on Environmental Cooperation’, August 1993, available at: www.cec.org. Ibid., art. 1(h).

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have committed themselves to periodically prepare and make available reports on the state of the environment, and to ensure that their law, regulations etc. on matters covered by the Agreement are promptly published. This includes also publishing proposals and providing opportunities for the public to comment on such proposals.87 In order to promote enforcement action, the parties must also publicly release non-compliance information, promote auditing and require record keeping and reporting, and ensure that judicial, quasi-judicial or administrative enforcements proceedings are available to sanction or remedy violations of environmental laws and regulations.88 Finally, NAAEC sets out rather detailed requirements for access to justice and remedies, of relevance also for enforcing transparency.89 While NAAEC thus obliges the parties to provide for transparency, there is no equivalent body to the Aarhus Convention Compliance Committee or any of the international human rights bodies to review compliance with the international standards.90 Rather, the work for promoting transparency within the NAAEC is policy-oriented.91 Despite increasing interest and activities in South America and the Caribbean to initiate negotiations for a regional treaty on access to information and public participation in environmental matters, there is not yet any multilateral agreement in the Americas with specific minimum requirements for transparency in environmental matters through access to information or public participation. Instead, most support in international law for transparency, access to information and public participation in environmental matters is provided by the Inter-American human rights regime. The Inter-American Court of Human Rights (IACtHR), in concluding that incorrectly restricting access to information for an NGO may amount to a violation of the right to freedom of thought and expression, including the freedom to seek, receive and impart information,92 held that ‘it is essential that the State authorities are governed by the principle of maximum disclosure, 87 90

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Ibid., arts. 2(1a) and 4. 88 Ibid., art. 5. 89 Ibid., art. 6. The review procedure created by ibid., arts. 14 and 15, i.e. the ‘Submission of Enforcement Matters’ process, which can be triggered by members of the public, is limited to reviewing whether a party fails to effectively enforce its environmental law. Ibid., art. 16. See Commission for Environmental Cooperation, ‘Our Future with the CEC: Strategic Plan of the Joint Public Advisory Committee (JPAC), 2006–2010’, February 2006, available at: www.cec.org. American Convention on Human Rights: ‘Pact of San Jose´, Costa Rica’, 22 November 1969, 1144 UNTS 123, art. 13.

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which establishes the presumption that all information is accessible, subject to a limited system of exception’.93 The Inter-American Commission on Human Rights has concluded, with respect to indigenous communities, that failing to provide effective consultation, including ‘information that must be shared with the communities concerned’, amounts to a violation of the right to property.94 Lacking more precise international standards for transparency in environmental matters, these findings by the Inter-American Court and Commission on Human Rights give profound support for the development of international norms on transparency, access to information and public participation in the region. There is even less support in international law for transparency in environmental matters in Africa than in the Americas, despite some provisions for transparency through public participation in international environmental agreements and, more importantly, some jurisprudence in human rights law. The revised African Convention on the Conservation of Nature and Natural Resources of 2003 (as of April 2013, not yet in force), provides for access to information and participatory rights in environmental matters.95 The main problem with this Convention from a legal point of view is not the rather vague provisions, but the poor record of ratification of the African States still, ten years after its adoption. While also institutionally weaker than its European and InterAmerican counterparts, the 1981 African Charter on Human and Peoples’ Rights grants stronger support for transparency in environmental matters than any African environmental agreement.96 The African Charter provides for a right to receive information, related to

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IACtHR, Claude-Reyes and Others v. Chile, Judgment of 19 September 2006 (Merits, Reparations and Costs), Series C No. 151, para. 92. Interestingly, the Court also referred to the Aarhus Convention in para. 81. American Declaration of the Rights and Duties of Man, April 1948, OAS Resolution XXX, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OAS/Ser.L/V/I.4 Rev. 9 (2003), art. 23. Inter-American Commission on Human Rights, Maya Indigenous Communities of the Toledo District, Belize, Report No 40/04, Case 12.053, 12 October 2004. African Convention on the Conservation of Nature and Natural Resources (Revised Version), 1 July 2003, available at: www.au.int, art. 16. The 1968 version of the African Convention on the Conservation of Nature and Natural Resources, 15 September 1968, 1001 UNTS 3, which is in force, does not contain any provision of this sort. African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 UNTS 217.

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the right of freedom of expression,97 and a right to participate freely in the government.98 In addition, and more important for the right to access to information and transparency, is the right to a ‘general satisfactory environment favourable to their development’.99 The case law in environmental matters is not that vast, yet the African Commission on Human and Peoples’ Rights, operating under the Charter, has provided important jurisprudence on environmental and social impact studies, and on the dissemination of information to the communities exposed to hazardous materials and activities.100 If properly complied with, each of these requirements should promote transparency. While the normative conclusion of the African Commission is important, there is little record or follow-up as to the performance of the parties to the Charter. Except for central Asia, the least support in international law for transparency in environmental matters is found in Asia and the Pacific. Here, no regional environmental agreement in force addresses the issue,101 and nor is there in force any effective regional human rights regime to push for transparency in environmental matters. Thus, as far as international law on transparency is concerned, only the mentioned global regimes apply.

5. Conclusions As pointed out, the push for transparency in environmental matters in Europe and central Asia results from the combined effect of norms, actions and institutions. The Aarhus Convention and the ECHR are alive and kicking in particular because of input from the public. Even though such review systems, triggered by members of the public, cannot ensure full compliance, they make compliance flaws more visible and transparent, and they spur continuous deliberations. No such regimes exist for any other region, and the short survey of international law on transparency outside Europe and central Asia 97 100

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98 99 Ibid., art. 9. Ibid., art. 13. Ibid., art. 24. African Commission on Human and Peoples’ Rights, The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, Decision of 27 October 2001, Communication No. 155/96. Association of Southeast Asian Nations, Agreement on the Conservation of Nature and Natural Resources, 9 July 1985, available at: www.aseansec.org, art. 16, which is not yet in force, requests the parties to circulate information on conservation measures and ‘as far as possible’ to organize participation of the public in the planning and implementation of such measures, but does not contain any provision concerning access to justice.

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confirms the significant differences in terms of international standardsetting and compliance control in Europe and elsewhere. It also reveals that the developments and changes outside Europe and central Asia, towards more robust and ambitious international norms on transparency, access to information, public participation and access to justice in environmental matters, if any, are rather slow. It may be tempting, therefore, to conclude that the issue is European only, rather than global. Yet, this somewhat cynical conclusion would fail to take account of the normative fragments that still apply also elsewhere, despite the lack of robust regional legal frameworks for transparency. The global environmental conventions with provision for transparency, access to information and public participation, as well as the 2010 UNEP Guidelines, do reveal some global consent, or at least acceptance, of the value of transparency in environmental matters. Moreover, jurisprudence of the existing human rights bodies in the Americas and Africa (and Europe) signify that access to information and public participation in environmental matters are now part of the corpus of international human rights law. In concluding that transparency in environmental matters is a European notion only, one would also disregard the impact of international law, policy-making and discourse on transparency on national laws also for regions where there are no robust international legal frameworks for transparency in place, as revealed by the 1992 Rio Declaration and the Aarhus Convention.102 Moreover, some vast countries with rather advanced laws on transparency, such as USA and Canada, may deem it more effective to promote transparency in federal laws than through international treaty law (although for these countries the NAAEC does set out some such requirements), while still consenting to the notion of transparency. This is where we are. The described normative fragments in global and regional instruments can be construed as an emerging principle of international law on transparency in environmental matters, in accordance with principle 10 of the 1992 Rio Declaration. There was no agreement at the 2012 UN Rio+20 Conference to start any negotiation on a 102

See e.g. Jona Razzaque, ‘Participatory Rights in Natural Resources Management: Role of Communities in South Asia’, in Jonas Ebbesson/Phoebe N. Okowa (eds.), Environmental Law and Justice in Context (Cambridge University Press, 2009), 117–138, referring to the post-Rio development in south Asia. Qun Du, ‘Public Participation and Challenges of Environmental Justice in China’, in Ebbesson/Okowa (eds.), Environmental Law and Justice in Context 2009, 139–157, also shows some changes in Chinese law on related issues since the late 1980s.

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global treaty, but the Conference agreed on encouraging action ‘at the regional, national, subnational and local level’ to promote access to information, public participation and access to justice in environmental matters.103 While such a general provision in a policy document does not ensure global law on transparency in environmental matters, it confirms that the issue is not European only. And also, it reveals at least some ambition in advancing international law on the topic. 103

Rio+20, The Future We Want, 2012 (n 12), para. 99.

PART II International Economic Law

4 Transparency in International Financial Institutions luis miguel hinojosa marti´nez

1. In Search of a Concept of Institutional Transparency in the Financial World In a public institutional context, the concept of transparency is enshrined in the broader notion of good governance or good administrative practice as one of its main components, together with other principles such as participation, reasoned decision-making, legality and accountability.1 There are close relationships between these principles, because a transparent institution will receive more inputs from interested stakeholders and will be naturally inclined to more reasoned decision-making. In parallel, in a transparent administration it will be easier to identify the persons making the decisions and to hold them accountable for the outcomes. Nevertheless, both from an axiological and practical point of view, it is possible to differentiate the analysis of these principles. In the sphere of economic institutional cooperation, the prejudice that politicians should leave the leading role to economists, to technicians, has deep roots, above all in the financial world. The apparent impartiality of economic technocracy has illustrated the activity of many international economic organizations that advise their member countries on how they should conduct their financial or trade policies. The objectivity of these international bureaucracies finds recognition in the charter of some international financial institutions, such as article IV(10) of the International Bank for Reconstruction and Development (IBRD) Articles of Agreement.2 1

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Benedict Kingsbury/Nico Krisch/Richard B. Stewart, ‘The Emergence of Global Administrative Law’, Law and Contemporary Problems 68 (2005), 15–61, 17. World Bank (WB), International Bank for Reconstruction and Development, ‘Articles of Agreement’, 27 June 2012, available at: www.worldbank.org, art. IV(10): ‘[t]he Bank and

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More specifically, there is a conventional wisdom, though not universally accepted, that holds that political control of anti-inflationary or even of general monetary policy is counterproductive. The irresistible temptation is usually for politicians to push for the adoption of populist/lax monetary measures apparently effective in the short term but with negative effects in the longer term. This line of reasoning has been used to justify that democracy is ill suited to an orthodox monetary policy and to defend that central bank functions should be exercised independently of the government, and subject only to technocratic rule. In this context, the concept of ‘expert democracy’3 emerges to explain that citizens prefer to entrust these highly complex decisions to wellformed and skilful bureaucrats that will not be distracted from the defence of the public interest, rather than to elected politicians, who are likely to waste time and resources in minor differences and demagogy. However, in spite of this common thinking, any economic decision is a political decision, and there is no neutral or aseptic economic or monetary policy. The qualification of such decisions as ‘technical’ has not provided the most appropriate environment for transparency and has fostered the opaqueness of international financial institutions during the second half of the twentieth century. These bodies legitimized their economic and normative output through the fulfilment of the mandate given by their member countries and were only accountable to them, in an international society which consisted of States. The development of conditionality policies, now more stringent and detailed than in the past, led international financial institutions to take decisions not only on the management of capital markets, but on social policies, health, education, privatizations, sustainable energy or water strategies, and any kind of State intervention that may be affected by

3

its officers shall not interfere in the political affairs of any member; nor shall they be influenced in their decisions by the political character of the member or members concerned. Only economic considerations shall be relevant to their decisions, and these considerations shall be weighed impartially’. This kind of provision seems to implement the principles of pacific cooperation among States, irrespective of the differences in their political, economic and social systems, and of non-intervention in the domestic affairs of other States. Nevertheless, together with a marked idealism, these statements incorporate a great degree of hypocrisy. For a sound critique of the concept of expert democracy on the basis that ‘consensus with respect to the goals of monetary institutions is a false perception’, see John R. Freeman, ‘Competing Commitments: Technocracy and Democracy in the Design of Monetary Institutions’, International Organization 56 (2002), 889–910, 901–906.

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negotiations over budgetary policy.4 This greater intrusiveness of international financial institutions has to be compensated by the establishment of elements of democratic control at an international level. Otherwise, economic globalization will contribute to impoverishing the quality of our democracies. The growing prominence of informal cooperation bodies such as the Group of Twenty (G-20) or the Financial Stability Board (FSB) in the design of the international financial architecture in recent years further increases this risk, as their activities remain largely alien to democratic checks and balances. In this context, the demand for transparency from the international financial bodies appears to be an indispensable condition to ensure respect for the other core principles composing the concepts of democracy and good governance. This chapter provides a comparative analysis of international financial institution’s transparency policies and denounces its shortcomings and excessive prudence, and in the case of less formal cooperation bodies (such as the G-20 or the FSB), the lack of attention to basic transparency concerns.

2. Transparency in the International Monetary Fund (IMF) The IMF traditionally considered that discretion and confidentiality should govern its activities as a technical monetary organization that dealt with delicate financial data of member countries, and had to provide advice for the adoption of difficult measures in times of crisis. It was only in the 1980s that an External Relations Department was created and the variety of publications open to the public increased. The turning point came during the second half of the 1990s, when more documents started to appear on the IMF’s web page, and Press Information Notices (today Public Information Notices) began to be published after Executive Board meetings. In January 2001 the Board formally adopted its first decision to implement a transparency policy through the release of a greater number of documents and a ‘Statement of Guiding Principles for the IMF’s Publication Policy’.5 An Independent 4

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Irfan Nooruddin/James R. Vreeland, ‘The Effect of IMF Programs on Public Wages and Salaries’, in Jennifer Clapp/Rorden Wilkinson (eds.), Global Governance, Poverty and Inequality (New York: Routledge, 2010), 90–111. IMF, ‘Annual Report of the Executive Board for the Financial Year Ended April 30, 2001’, available at: www.imf.org, 33–36 and appendix V.

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Evaluation Office was also set up in July 2001 with a mandate ‘to systematically conduct objective and independent evaluations on issues, and on the basis of criteria, of relevance to the mandate of the Fund’.6 The decision that contains the present transparency policy of the IMF entered into force on 17 March 2010 (Transparency Decision),7 and was to be reviewed in 2012 in light of experience, and thereafter at intervals not exceeding five years. We will distinguish three different kinds of transparency in order to better understand the different aspects of the IMF disclosure policy, although these concepts may overlap and are parts of a single strategy. We can differentiate documentary transparency (which gives a snapshot of the documents available to the public and the conditions in which access is granted), decision-making transparency (which makes reference to the information provided as to how decisions are being taken, and particularly who is taking or has taken the decision and why), and operational transparency (which enables the public to check how decisions have been put into practice).

2.1

Documentary Transparency

In its Transparency Decision, the IMF classifies its documents as regards the regime of accessibility into three categories.8 (1) Country Documents. These set out the economic situation or the lending decisions with regard to a member State. Among others, we are referring to article IV reports,9 staff reports on Poverty

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8 9

The Independent Evaluation Office is independent of Fund management and staff and operates at arm’s-length from the Fund’s Executive Board (EB). For a full description of its structure, mandate and evaluations, visit its web page, available at: www.ieo-imf.org. This policy was established by the EB in IMF, Review of the Fund’s Transparency Policy, Decision No. 13564-(05/85), 5 October 2005, that was reviewed and modified by the IMF, The Fund’s Transparency Policy, Decision No. 14497-(09/126), 17 December 2009 (Transparency Decision). Ibid., para. 1. Article IV reports are periodically issued (annually, except for small countries, whose reports may cover longer periods) for a specific member State analyzing its economic and monetary policies, its financial situation and other economic fundamentals, after a staff team has visited the country and discussed the information gathered with the national authorities.

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Reduction Strategy Papers10 or Ex Post Monitoring and Evaluation staff reports, and staff reports or Chairman’s Statements for Policy Support Instruments.11 (2) Country Policy Intentions Documents. These describe member States’ economic plans and commitments. Among others, we are talking of Poverty Reduction Strategy Papers,12 Letters of Intent,13 Memoranda of Economic and Financial Policies,14 and Technical Memoranda of Understanding.15 (3) Fund Policy Documents. Only two kinds of documents are included in this category: Fund Policy Issues Papers16 and Public Information Notices17 following Executive Board discussions. The 2010 reform reintroduced the ‘Transparency Principle’ in the text of the Transparency Decision.18 This means that, as a general rule, publication of Country Documents and Country Policy Intentions

10

11

12 13

14

15

16 17

18

Poverty Reduction Strategy Papers are prepared by low income member countries to explain their structural policies designed to promote growth and reduce poverty. They are reviewed in Joint Fund/World Bank Staff Advisory Notes. A Policy Support Instrument is a programme in which the IMF provides advice to a low income country that does not ask for the Fund’s financial assistance but desires to obtain its monitoring and support for certain policies. See n 10. Formal letter submitted by a government to the IMF when demanding financial assistance. Typically, this document briefly describes the economic reforms envisaged by the national authorities and is accompanied by a more detailed Memorandum of Economic and Financial Policies and a Technical Memorandum of Understanding. This document outlines the different economic and financial policies that the member requesting financial assistance is committed to develop, including performance criteria and structural benchmarks. This document establishes the definitions, indicators and quantitative targets to which reference is made in the Memorandum of Economic and Financial Policies. IMF Staff Reports on any policy issue related to the Fund’s mandate. Public Information Notices offer summaries of the dialogue and the decisions taken in the EB, but without identifying the positions of each Executive Director (ED). When they refer to a specific country, they are only published with the consent of the country (or countries) concerned. The IMF had established in 2001 a presumption of disclosure for some Country Policy Intentions Documents, so that members had to expressly notify the Fund if they wanted to prevent their publication. In 2003 the IMF came back to a presumption of nondisclosure, as the member’s explicit consent was requested before these documents were made accessible to the public (Global Transparency Initiative (GTI), ‘Transparency at the IMF: A Guide for Civil Society on Getting Access to Information from the IMF’, September 2008, available at: www.ifitransparency.org, 5).

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Documents is voluntary but presumed. This presumption means that the publication of the documents occurs promptly after their consideration by the Executive Board19 unless the member concerned objects to the publication.20 In parallel, a member that requests access to the Fund resources is ‘expected to indicate that it intends to consent to the publication of the related Board documents before the Board meeting’.21 A special procedure has been established for some documents that may contain delicate data that could weaken the financial image of a member in times of economic fragility.22 For example, the Chairman’s statement to be released after the Executive Board has adopted a decision on the member’s use of Fund resources is handed in to the Executive Director designated by the member to propose minor revisions and to consent to its publication. This procedure is closer to the need for express consent prior to publication than to the transparency principle.23 The IMF handles other documents related to specific countries that are not mentioned in the Transparency Decision although sometimes it publishes them.24 They require a specific authorization for publication, and in some cases, as with the Side Letters for the use of Fund’s resources, they are simply placed outside any transparency obligation, as they must be treated ‘with the utmost confidentiality by management, Fund staff, and EDs’.25 19

20

21

22

23 24

25

Or the date of adoption of a decision to which that document relates on a lapse-of-time basis. IMF, Transparency Decision (n 7), paras. 2b and 2d. Those documents that are circulated for information only, such as the Poverty Reduction Strategy Papers or the Reports on Observance of Standards and Codes, may be published immediately after circulation to the EB (para. 17). Ibid., para. 2c. Besides, the Managing Director will not recommend the approval of some programmes for low income countries (namely Poverty Reduction and Growth Facility arrangements or Policy Support Instruments), or a request to obtain exceptional access to the Fund’s general resources, if the countries concerned do not consent to the publication of certain related documents (ibid., para. 3). E.g. waivers for non-observance (or of applicability) of performance criteria are mentioned in the factual statement section of the press release containing the Chairman’s statement. IMF, Transparency Decision (n 7), para. 10. For example, Technical Assistance Reports require the explicit consent of the recipient country (IMF, ‘Operational Guidance on Dissemination of Technical Assistance’, 6 April 2009, available at: www.imf.org). On the contrary Safeguard Assessments are considered confidential documents, and even the EB receives only a summary (see IMF, ‘Guidance Note on the Fund’s Transparency Policy’, updated 23 December 2010, available at: www.imf.org, appendix V). IMF, Side Letters and the Use of Fund Resources, Decision No. 12067-(99/108), 22 September 1999, para. 1. Side Letters are defined is this Decision as ‘a letter or other written communication from a member’s authorities to Fund management or staff

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As can be seen, member countries can always avoid the publication of the documents related to them, although the rate of disclosure has significantly improved in recent years.26 There is a strong expectation that the documents related to the authorization of the use of Fund resources will be released, although some of the commitments made by the borrower can be kept secret, and the modification on the conditions of lending or the content of the advice and support of the IMF may be kept out of the public scrutiny. The Transparency Decision also establishes that the publication of the Fund Policy Documents is conditioned to a positive decision of the Executive Board to that effect. In particular, this organ will not allow publication when it may undermine ‘the Fund’s decision-making process’, without any specification of what this may mean.27 Additionally, Board Papers concerning IMF income, financing or budget are often published,28 except when the Fund staff considers that they contain ‘market sensitive information’. Reports dealing with other internal or administrative matters are neither covered by the Transparency Decision nor usually published. When a request to obtain documents is rejected by the IMF, there is no appeal procedure to question the confidentiality criteria used in that specific case.29

26

27

28

29

containing confidential policy understandings complementary to or elaborating upon those in new or currently applicable letters of intent supporting a request for the use of Fund resources’, and they usually contain the most controversial and sensitive government plans related to IMF financing (IMF, Side Letters, 1999, para. 2). In 2010, 92% of Article IV and Use of Fund Resources Reports were published, with a rate that varied according to economic and regional characteristics: advanced economies (100%), emerging markets (90%) and developing countries (89%) (IMF, ‘Key Trends in Implementation of the Fund’s Transparency Policy’, 6 July 2011, available at: www.imf. org, 4). In practice the decision is taken on the basis of the IMF staff recommendation. It is considered that the board consents to publication if no director objects to the staff proposal in that sense (IMF, ‘Guidance Note’ 2010 (n 24), paras. 26–27). The Fund published 90% of its policy papers in 2010 (IMF, ‘Key Trends’ 2011 (n 26), 3). IMF, Articles of Agreement of the International Monetary Fund (1944) (Washington DC: International Monetary Fund, 2011), art. XII(7a), indicates that ‘[t]he Fund shall publish an annual report containing an audited statement of its accounts, and shall issue, at intervals of three months or less, a summary statement of its operations and transactions and its holdings of special drawing rights, gold, and currencies of members’. ‘Access to Fund documents classified as “Secret” or “Strictly Confidential” as of March 17, 2010, will be granted only upon the Managing Director’s consent to their declassification. (. . .) For restricted documents prior to March 17, 2010, Board Decision No. 11192-(96/2) adopted January, 1996 and a subsequent Board document passed in

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2.2

Transparency in Decision-making

2.2.1

The Role of the Different Actors in the Decision-making Process A preliminary question would be to ask what the role is of the different actors participating in the decision-making process within the IMF: management, staff, the Executive Board, and the member States.30 IMF staff directly negotiate with governments, establishing conditions, terms of agreement and providing advice on the economic decisions that governments have to make, especially when the country is asking for the Fund’s financial assistance. There is no way to gain access to such discussions from the IMF, and only if the country concerned so decides may external interested stakeholders obtain this information from national administration sources. Staff and management also control the information flow between the countries that require financial help or counsel and the Executive Board. In this context, the most important decisions are really taken before the Executive Board meeting by negotiations between the staff/senior management and the most powerful member States. The position of many Executive Directors does not allow them to exercise a real influence in decision-making. The discussions and alternatives considered during the drafting of the texts that are proposed to the Executive Board are not reflected in the final documents, leaving the Executive Directors with few opportunities to introduce coherent amendments or different proposals.31 The need to take speedy decisions in times of crisis works further against the capacity of the Executive Directors to constructively challenge the proposals presented to them.

30

31

February 1996 are applied where the Managing Director delegates authority to Heads of Departments and Offices to grant declassification to records originating from their business units and for other documentary records, the Office of the Secretary’ (IMF, ‘Archives of the IMF’, available at: www.imf.org/external/np/arc/eng/archive.htm). Although the Board of Governors is formally the highest decision-making body of the IMF, it has delegated most of its powers to the EB, which is the real decision-making organ of the organization. In any case, all the considerations made here with regard to the distribution of quotas and voting power in the EB are equally applicable to the Board of Governors. The latter retains competence to elect or appoint the EDs, approve the admittance or compulsory withdrawal of members, increases in IMF quotas, and amendments to the IMF Articles of Agreement and By-Laws. Most of its important decisions require an 85% supermajority or a 70% majority. Ngaire Woods, ‘Making the IMF and the World Bank More Accountable’, International Affairs 77 (2001), 83–100.

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The few member countries that are able to negotiate and influence the staff and the management, because of their voting powers and their human resources (their Executive Directors are supported by national civil servants with deep knowledge of IMF work) may have an interest in this deficient flow of information within the Board because this model maintains their enhanced capacity to influence the Fund’s decisions and policies.32 Moreover, it makes the taking of decisions more agile. And there is an additional consequence of this situation: as the Executive Board approves most of the decisions taken by management/staff, the responsibility of decision-making shifts from the real authors to the Executive Directors who employ too much time dealing with executive and operational issues, instead of concentrating on a supervisory role over the management and on the design of strategic policies.33 Thus, to a great extent, it is justified to qualify the IMF as an organization driven by the staff34 and a de facto directorate of the most powerful member countries.35

2.2.2

The Unequal Power of Member Countries in Decision-making The relative weight of member countries in the decision-making process is a second element conditioning IMF transparency. In spite of its quasiuniversal membership, most countries are in fact excluded from the decision-making in the IMF. The number of votes in the institution determines the capacity of influence, and most of the voting power is concentrated in the hands of a few members. Previous discussions in the discreet Group of Seven (G-7) have traditionally shaped the posterior policy decisions in the IMF. In particular, the capacity of the United 32

33

34

35

Bahram Ghazi, The IMF, the World Bank Group and the Question of Human Rights (Ardsley: Transnational Publishers, 2005), 291. The IMF Independent Evaluation Office has proposed redefining the role of the International Monetary and Financial Committee in order to establish ‘a ministeriallevel governing body’ that got involved more actively ‘in setting broad strategic goals and in overseeing performance’ (IMF, Independent Evaluation Office, Governance of the IMF: An Evaluation (Washington DC: IMF, 2008), 19). Richard H. R. Harper, Inside the IMF: An Ethnography of Documents, Technology and Organisational Action (London: Academic Press, 1998), 284–285. In a survey among mission chiefs made by the IMF Independent Evaluation Office, 7% declared that their technical judgement regarding support for a Use of Fund Resources Report had been overridden by political pressures ‘frequently’ or ‘always’, while 48% affirmed that they had experienced strong political pressure only ‘occasionally’ or ‘sometimes’ (IMF, Independent Evaluation Office, Evaluation of Prolonged Use of IMF Resources (Washington DC: IMF, 2002), 64).

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States to influence the decisions in the IMF is clearly lopsided, and as a single country it enjoys a veto power over the most important decisions of the Executive Board.36 The IMF has always been sensitive to the position of the US Congress, not only because its headquarters is placed in Washington DC, but as a consequence of its relevance in the adoption of the most significant decisions in the organization.37 When voting, Executive Directors take into account the positions and interests of the countries that form the constituency which they represent. This is even more so in the case of the Executive Directors appointed by a single State that directly receive instructions from the country’s government on how to act. Within this context, any request to the Executive Directors to act with absolute impartiality, attending only to ‘technical economic considerations’, has to be qualified as naïve.38 The quota reforms agreed in 2008 did not satisfy the emerging countries who kept demanding a more comprehensive reform of the voting system.39 However, the doubling of quotas and the realignment of quota shares approved by the Board of Governors in December 2010 involves an unprecedented shift in the voting power inside the IMF and can be considered a significant step towards the multilateralization of decision-making in this organization.40 Nevertheless, the US would still retain its veto capacity with 16.5% of the votes after the reform becomes effective, and apart from the 36

37

38

39

40

Alan Beatti, ‘Germany Asks US to Give Up its IMF Veto’, Financial Times (15 September 2010). Other countries, when acting together, also enjoy this veto capacity, as for example the BRIC States (Brazil, Russia, India and China), or the European Union countries. J. Lawrence Broz, ‘The United States Congress and IMF Financing, 1944–2009’, 20 January 2011, available at: http://weber.ucsd.edu/~jlbroz/). Some authors have established a link between temporary Security Council membership and the probability of receiving IMF loans, as the major IMF shareholders, mainly the United States, may use their voting power to harden or soften the lending conditionality to a needy borrower country depending on their political behaviour (Axel Dreher/JanEgbert Sturm/James R. Vreeland, ‘Global Horse Trading: IMF Loans for Votes in the United Nations Security Council’, European Economic Review 53 (2009), 742–757). Ngaire Woods, ‘Global Governance after the Financial Crisis: A New Multilateralism or the Last Gasp of the Great Powers?’, Global Policy 1 (2010), 51–63, 56. After the reform, the share of voting rights of the most benefited countries was: China (3.81%), India (2.34%), Brazil (1.72%), and Mexico (1.47%). For a critique of the lack of transparency of the formula used to allocate the voting power to each member country, see Dennis Leech/Robert Leech, ‘Reforming IMF and World Bank Governance: In Search of Simplicity, Transparency and Democratic Legitimacy in the Voting Rules’, Warwick Economic Research Papers 914 (2009). The voting rights share for major emerging economies represents 6.07% (China), 2.63% (India), 2.58% (Russia), 2.2% (Brazil).

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emerging economies which have increased their voting power, for a great majority of the developing countries their scarce capacity for influence remains unchanged.41 The fact that the Board of Governors has supported a reform of the Articles of Agreement so that all Executive Directors will be elected (no Executive Directors would be appointed by individual members) does not modify substantially the decision-making process as the major shareholders are expected to be represented by an Executive Director who will continue to defend their interests as in the past,42 above all when taking key decisions on the main IMF policies or cases.43

2.2.3

Procedural Rules Hindering the Transparency of Executive Board Meetings While the transparency presumption governs the publication of Country Documents and Country Policy Intentions Documents, the Fund adopts a more restrictive approach towards its own Policy Documents because a specific decision of the Executive Board is required to allow for their public release.44 Moreover, the fact that documents related to decisionmaking can only be published after their consideration by the Executive Board45 clearly contributes to the protection of this process from outside interference. External actors are thus prevented from influencing or even giving an opinion on what is to be debated with a documentary basis.46 41

42

43

44 46

Agnès Be´nassy-Que´re´/Sophie Be´reau, ‘Rebalancing IMF Quotas’, The World Economy 34 (2011), 223–247; Peter Chowla/Jeffrey Oatham/Claire Wren, ‘Bridging the Democratic Deficit: Double Majority Decision-making and the IMF’, 2 February 2007, available at: www.brettonwoodsproject.org. However, after analysing the process of consensus-building in the EB, Leo Van Houtven concludes that ‘experience has amply demonstrated that with good arguments and good tactics the developing countries turned many Board debates and decisions in their favour’, above all when they elected strong and experienced personalities to defend their interests in the Board (Leo Van Houtven, Governance of the IMF: Decisionmaking, Institutional Oversight, Transparency, and Accountability, Pamphlet Series 53 (Washington DC: IMF, 2002), 67–68). IMF, ‘IMF Quota and Governance Reform-Elements of an Agreement’, 31 October 2010, available at: www.imf.org, annex II, paras. 15–22. Miles Kahler has argued that an institutional reform that tried to insulate the EB from major shareholders’ foreign policy considerations ‘might reduce the engagement of the most powerful governments and ultimately the effectiveness of the organization’ (Miles Kahler, ‘Internal Governance and IMF Performance’, in Edwin M. Truman (ed.), Reforming the IMF for the 21st Century, Special Report 19 (Washington DC: Institute for International Economics, 2006), 257–270, 260–261). IMF, Transparency Decision (n 7), para. 13. 45 Ibid., 17. The EB Calendar is now published in the IMF web page seven days in advance. Although this organ’s work programme is published every three months, it is only the Board Calendar that enables us to know the specific subject on which decisions are to be made.

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The debate that takes place in the Executive Board is rather opaque. Of course, these meetings are held behind closed doors. The ‘Grey Statements’ issued by individual Executive Directors proposing changes to the Board papers under discussion are not immediately released, though they may introduce significant modifications in some cases.47 These grey papers, together with the Board minutes and the record of votes, are only available after five years. Therefore, accessibility to these documents is designed more for historical analysis than for transparent decision-making. The summing-up of the Board meetings that appears in the Public Information Notices published promptly after its reunions is drafted in a codified language48 that does not allow the individual positions of each of the Executive Directors during the debate to be identified, a situation which is exacerbated by the practice of consensus, which is the most common form of decision-making in the Executive Board. Here we find a clear need for improvement, as there is no acceptable reason why immediate information on the Executive Directors’ votes and minority viewpoints should not be clearly and regularly explained in the Public Information Notices. In this context, the only way to obtain information in a timely manner (but always after the Executive Board meeting) on the positions of each Executive Director in the Executive Board debates is through the national administration that he/she represents. However, the success of this initiative will depend on the degree of transparency of each national administration (only few States give this information) and on the constituency of the Executive Director (those Executive Directors representing a large number of countries may provide vague information in order to avoid friction among them).

2.2.4 The Role of Civil Society in Decision-making In spite of its bad reputation for lack of transparency, the IMF keeps regular contact with civil society organizations and releases more 47

48

Jeff Chelsky, ‘Summarizing the Views of the IMF Executive Board’, in Ruben Lamdany/ Leonardo Martinez-Diaz (eds.), Studies of IMF Governance: A Compendium (Washington DC: IMF, 2009), 222. Some inconvenient statements in the staff report are usually softened at the suggestion of EDs. This has led to the introduction of a rule (para. 15) in the Transparency Decision stating that staff proposals in a report shall not be modified for its publication, though it will be clearly indicated which proposals the EB did not endorse. The IMF itself publishes on its web page a list of ‘qualifiers’ used in the summings-up of its EB meetings. ‘Some’ means 5–6 Directors, ‘many’ 10–15, ‘most’ 15 or more, etc.

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information than many national governments.49 The IMF jointly with the World Bank organize a Civil Society Policy Forum in parallel with the Annual and Spring Meetings of the IMF and World Bank, and the IMF staff hosts or attends seminars and other meetings with NGOs, the financial industry and other stakeholders. However, in a recent survey of the IMF Independent Evaluation Office and civil society organizations, most of them complained of the lack of a formal procedure for consultation (the IMF only consults when it wishes, and may suspend talks at any time), and complained that contacts usually take place after the decisions have been taken (to explain them) and not before, when some influence on the outcome could have been expected.50 Some authors submit that in democratic countries where there are swift mechanisms to channel the opinion of civil society groups towards the State in the IMF, the above-mentioned lack of popular participation in decision-making can be somehow mitigated.51 However, when there is no possibility to influence the position of the national government internally, the international institution may provide the only way to lobby the outcome. An NGO’s perspective will normally enrich the decision-making process,52 as their view of concepts such as the socialization of losses or the conditions for the use of public resources in the rescue of banks will most likely differ from that of the financial industry (the latter possessing more means to promote its positions). Nevertheless, there are many important obstacles to an enhanced role for NGOs in the IMF. The Articles of Agreement do not give 49

50

51

52

Apart from very opaque political regimes, or countries that lack resources to provide constantly updated information, the release of financial data is seen by many States as problematic because they fear that it might cause economic instability or show weaknesses that they would prefer to hide. For a strong defence of the argument that multilateral organizations generally improve standards of transparency and justification by reason-giving in decision-making, specifically in policy areas central to the world economy, see Robert O. Keohane/Stephen Macedo/Andrew Moravcsik, ‘Democracyenhancing Multilateralism’, 2007, available at: http://iilj.org, 29–34. ‘Several CSOs viewed the IMF’s approach to CSO relations as one-sided and, at times, “patronizing”, rather than one of partnership’ (IMF, Independent Evaluation Office, Governance of the IMF 2008 (n 33), annex 3). Daniel Bradlow, ‘Assessing International Financial Reform’, in Julio Faundez/Celine Tan (eds.), International Economic Law, Globalization and Developing Countries (Northampton: Edward Elgar, 2010), 67–93, 87. Claire R. Kelly, ‘Financial Crisis and Civil Society’, Chicago Journal of International Law 11 (2010), 543–546.

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them any capacity of representation, and indeed their legitimacy can on many occasions be questioned; moreover, some countries with scant weight in financial institutions have expressed fears that the little amount of time available for decision-makers in these bodies will be consumed by Western countries’ NGOs, thereby reducing their already insignificant capacity of influence.53 On the other hand, if the NGOs cooperate with the IMF they usually become less militant and may be accused of collaborationism54 and failure to represent civil society! Although there are important and respected NGOs in the international financial sphere, the world of civil society organizations is ample and heterogeneous, and an excessive participation of these entities could slow decision-making and generate important obstacles to consensus-building.55 Taking into account all these arguments, it is difficult to foresee how NGOs could increase their very modest role in IMF decision-making. As happens in the national political process, when NGOs are not able to communicate their demands to the political actors (the States in the IMF), their capacity to influence will inevitably be modest.56 While increased transparency would undoubtedly enhance their power to influence through persuasion and public image projection, the establishment of a wide and formal consultancy procedure (even if not applicable in crisis situations) still seems far away in the IMF.

53

54

55 56

As most NGOs originate from developed countries, they may be seen as an additional instrument to increase Western influence in international financial institutions (Ngaire Woods/Amrita Narlikar, ‘Governance and the Limits of Accountability: The WTO, the IMF, and the World Bank’, International Social Science Journal 53 (2001), 569–583, 581–582). There is a common accusation by more radical NGOs about more institutionalized civil society organizations that often cooperate with the Fund in the sense that they are used to improve its public image while not having any significant influence in the modification of the IMF ‘ultraliberal’ recipes for financial stabilization. Kelly, ‘Financial Crisis and Civil Society’ 2010 (n 52), 49. The IMF adopted in 2003 a ‘Guide for Staff Relations with Civil Society Organizations’, 10 October 2003 (available at: www.imf.org/external) that instructs the IMF staff to meet civil society organizations (CSOs) ‘early enough in policy processes that the consultation is meaningful’. However, the Guide establishes a clear limit to this relationship when it warns that ‘contacts with CSOs must not go so far that they interfere with the IMF’s primary relationship with the national government. Discussions of policy alternatives with CSOs should not generate an impression that the Fund is negotiating with CSOs rather than the government’.

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91

Operational Transparency

By operational transparency we refer to the IMF disclosure policy in the application of its rules, and particularly in the exercise of its surveillance role and its advisory functions. The surveillance of member countries’ financial policies is periodic, and becomes especially strong when it is developed in the course of a lending operation. The IMF advisory task also concerns the entire membership of the organization, although it has more relevance for those member States with less means (human and technical) in the financial area that ask for technical assistance. Both activities may have a normative outcome in the form of national legislation. The IMF Independent Evaluation Office is currently studying this issue, as the Fund’s staff has mixed feelings about operational transparency. While it is generally recognized that transparency has substantially improved in recent years, there appear inevitable ‘tensions between the IMF’s surveillance obligations, which carry with them enhanced disclosure requirements, and the attractiveness of the IMF as a source of advice on sensitive issues, which depends on confidentiality’.57 Confidence is seen as a key factor to strengthen the role of the IMF as an advisor in the designing of member countries’ economic and financial policies. Informal and frank dialogue between the IMF staff and the member countries is essential to build up the role of the IMF and its capacity to provide technical assistance. Thus, exceptions to the obligations of disclosure are seen by the staff as essential not to adversely affect the keenness of member countries to seek the IMF’s advice on delicate issues.58 In the Fund’s view, transparency obligations should be linked mainly to its surveillance functions, while its advisory role would need to be covered by confidentiality. It has to be noticed that with regard to the information gathered or the advice given to a specific member country it is usually the government of such a country that desires to limit the outreach of the Fund’s delegation work. With the notable exception of some Poverty Reduction and Growth Facility-eligible countries (and a few eastern European 57

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IMF, Independent Evaluation Office, ‘The Role of the IMF as a Trusted Advisor: Issues Paper for an Evaluation by the Independent Evaluation Office (IEO)’, 17 October 2011, available at: www.ieo-imf.org, 2. Leo Van Houtven has warned against the damage that would be caused to the IMF’s functions by its conversion into a sort of supranational State rating agency (Van Houtven, Governance of the IMF, 2002 (n 41), 61).

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countries), which were more open to the dissemination of the Fund’s work in recent years in order to help them build national consensus towards structural reforms, most advanced and emerging economies felt uneasy about policy-related outreach of IMF delegations in their country, either due to potential negative repercussions in the media or because of the unpopularity that any IMF initiative would meet due to its past bad reputation (linked to austerity programmes and social cuts).59 However, in the case of advanced economies, this is somehow compensated by their general acceptance of the publication of their Country Documents. For many non-transparent developing countries, the IMF country papers provide the most reliable independent source of information concerning government revenue and expenditure, economic statistics and future trends. On the other hand, a more extensive disclosure of policy advice would facilitate the accountability of IMF staff and management for the recommendations given on behalf of the organization. Again, this could be a double-edged sword, because it may reduce the sincerity and spontaneity of their dialogue with member States.60

2.4

Conclusions on IMF Transparency

The IMF has substantially improved the transparency of results, although it still preserves to a great extent the confidentiality of its decision-making process. This is likely to continue and any attempt to foster transparency in such a process will face strong opposition from the organization’s staff and from some member countries, as they feel that the present degree of transparency is very high and has sometimes prejudiced the Fund from effectively achieving its goals.61 The exigencies

59

60

61

IMF, Independent Evaluation Office, IMF Interactions with Member Countries (Washington DC: IMF, 2009), 20–22. The IMF Independent Evaluation Office has stressed the convenience of establishing a clearer accountability framework for the Fund’s management. This would involve the setting up of performance criteria and mechanisms to translate outcomes into incentives. However, the IMF Independent Evaluation Office considers that these assessments would need to be confidential to avoid undermining the credibility of the management vis-à-vis the membership at large (IMF, Independent Evaluation Office, Governance at the IMF, 2008 (n 33), paras. 70–72), something that would be difficult to achieve once the evaluation had been circulated to all the EDs. Carlo Cottarelli describes three possible drawbacks of transparency in the IMF: a negative market reaction (speculative attack) that could have been avoided by making

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of an efficient and agile administration also impose constraints on the disclosure policy that should not be underestimated. The IMF acts as a firefighter in times of crisis and a complex and balanced decision-making procedure might be unworkable in such circumstances. The use of market-sensitive information also imposes some degree of confidentiality, especially in relation to financial markets, where hysterical behaviour is so common and insider information could discriminate between economic operators. The distinction between supervisory and advisory functions, linking the more stringent disclosure obligations to the former, seems a reasonable way to make compatible the role of the IMF as a trusted advisor and its obligation to supervise member States’ economic and financial policies. However, when both functions have to be exercised at the same time dialectical problems will arise that cannot be easily solved in the abstract, and the Fund should enjoy a certain margin of appreciation. However, basic demands of accountability would advise the ex post disclosure of all these activities after a short period of time. Interaction and consultation with NGOs is necessary and provides valuable inputs for the fulfilment of IMF functions, but they play (and will continue to play) a very limited role in the decision-making process.

3. Transparency in the World Bank Like other financial institutions, the World Bank62 behaved with a great degree of opaqueness during its first forty years of activity. Pressure from NGOs began to produce changes in 1985 and 1991, when the World Bank took its first steps towards transparency, agreeing, among other things, to publicize environmental assessments before approving the financing of certain projects; additional pressure from the US Congress led to the formal adoption of a disclosure policy in 1993. This policy has been reviewed and widened in 2001, 2005, and 2010 (Access to

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reforms if the government had been given enough time; the disruption of the conditionality process due to a disproportionate reaction of markets to failures to comply that the IMF would have been willing to waive; and the impossibility of implementing necessary measures by giving time for the creation of negative coalitions (Carlo Cottarelli, ‘Efficiency and Legitimacy: Trade-offs in IMF Governance’, June 2005, available at: www.imf.org, 16–17). In this chapter, when we use the term World Bank we refer to the International Bank for Reconstruction and Development and to the International Development Association, as they share a common disclosure policy.

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Information Decision (AID)).63 The World Bank was already one of the international financial institutions with a better rate of disclosure and, in spite of its shortcomings, the 2010 reform has placed the World Bank as the most transparent international financial institution. As we did with the IMF, we will distinguish between documentary, decision-making and operational transparency.

3.1

Documentary Transparency

In what the World Bank itself qualified as a ‘paradigm shift’, the general principle of the AID (section 6) is that the Bank will allow ‘access to any information in its possession that is not on a list of exceptions’. The World Bank abandoned its previous practice of issuing a ‘positive list’ of documents (the presumption of non-disclosure applied to the rest of the Bank’s documents) to a general presumption of disclosure, unless the document is placed on the list of exceptions. Furthermore, section 1 of the AID contains one of the strongest discourses in favour of transparency in the world of financial institutions.64 Nevertheless, the high merit of this principle rests upon the existence of a strict negative list where only those documents whose disclosure could cause harm to well-defined interests were placed. However, the long and sometimes vague list of exceptions65 provided by the World Bank falls short of this well-intentioned ambition. The AID does not 63

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WB, ‘Wold Bank Policy on Access to Information’, 1 July 2010, available at: http:// documents.worldbank.org (AID). This is the date when the new policy took effect. Although the WB has periodically reformed its transparency policy, and it publishes implementation progress reports, there is no commitment to a regular review in a concrete time frame. Transparency is ‘critical for enhancing good governance, accountability, and development effectiveness. Openness promotes engagement with stakeholders, which, in turn, improves the design and implementation of projects and policies, and strengthens development outcomes’ (ibid., section 1). The exception of ‘corporate administrative matters’ includes, ‘but is not limited to’, corporate expenses, procurement or real estate, and may be interpreted in an overly inclusive way (ibid., section 15). The ‘financial information’ or the ‘deliberative information’ exceptions are also very widely drafted (ibid., sections 16 and 17). The ‘Attorney–Client Privilege’ exception covers all external or in-house legal advice, without establishing a harm test or other nuances that could soften this severe provision (ibid., section 11). See some critical comments in GTI, ‘Comments on “Toward Greater Transparency through Access to Information: The WB’s Disclosure Policy”: Revised Draft (October 16, 2009)’, 3 November 2009, available at: www.ifitransparency.org, 20–21. Until now a great majority of the denials of information have been based on the deliberative information policy exception (WB, Access to Information, Annual

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include a list of documents that will ordinarily be disclosed,66 and the mere presence of data that could fall under the exceptions in an otherwise disclosable document may justify its concealment. Besides, ‘under exceptional circumstances’ the Bank reserves its prerogative to restrict access to information that it would normally release ‘if it determines that such disclosure is likely to cause harm that outweighs the benefits’ (section 19, AID).67 The wide phrasing of this statement may frustrate reasonable attempts to obtain documents as it will be really difficult for a potential petitioner to argue against a negative decision of the management or the Board without basic material information. An additional limitation of the transparency presumption is found in section 14 of the AID where it is said that the World Bank will not grant access to information provided in confidence by member countries or third parties without their express permission. As it refers to ‘information’ and not to ‘documents’, the mere presence of information qualified as confidential by a member State may cause the non-disclosure of a document that otherwise would have been routinely released. To strengthen this third party veto capacity, this confidential information is not eligible for declassification after a lapse of time (sections 32 and 41, AID). A black hole is thereby created for external information that should have been dealt with by the World Bank.68 This external confidentiality is further complemented by the rule that governs the disclosure of country-specific documents. The latter will be released to the public only if they are on the list of documents prepared or commissioned by a member whose disclosure is a condition for doing business with the World Bank (section 20c, AID) or when the documents are prepared by the Bank and not routinely discussed with the country (section 20b, AID). Apart from this positive list, the curtains may be drawn. For country-specific documents routinely discussed with the member country/borrower, a negotiation procedure on their content is

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Report FY 2011: Moving Forward Transparency and Accountability (Washington DC: The World Bank, 2012), 13–14). Although there was a list of core documents and information that should be routinely posted on the WB’s external website in the preparing documents (WB, Operations, Policy and Country Services, ‘Toward Greater Transparency through Access to Information: The Bank Disclosure Policy’, 16 October 2009, available at: http://site resources.worldbank.org/INFODISCLOSURE/Resources/5033530-1236640024078/Access toInformationPolicy_Oct16.pdf, annex B). WB, ‘AID’ 2010 (n 63), section 18, in the opposite sense, also establishes the Bank’s prerogative to disclose certain types of restricted information. E.g. the WB could oblige its business partners to disclose financial information if it does not damage legitimate economic interests.

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laid down and, in any case, the aide-me´moire of the operational missions cannot be publicly released without the country/borrower’s agreement (section 20a, AID).69 As regards other documents prepared by member countries/borrowers, disclosure is conditional on obtaining the country/ borrower’s written consent (section 20d, AID). Thus, it has to be recognized that, despite the paradigm shift proclaimed in the AID, external actors still enjoy ample room for opaqueness in this publicly owned Bank.70 Board records and Board papers are routinely posted on the World Bank’s web page at the end of the deliberative process, unless they are classified as confidential (section 23, AID). However, there are a few exceptions of increased transparency: Board papers that involve consultations with stakeholders are normally released before the Board discussion,71 and Board papers distributed just for information are published upon distribution (section 23b, AID). On the debit side, it has to be stressed that those Board documents more suited to demand the Executive Directors’ accountability are kept confidential for a disproportionate time (ten or twenty years (section 33, AID)).72 Where the 2010 AID shows the most positive and outstanding elements is in its procedural and institutional novelties that place the World Bank as the leading institution in the context of international financial institutions’ transparency guarantees: a formal procedure to request information is established, an Access to Information Committee (AIC) is created, and an appeal procedure before an independent Appeals 69

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The need for a formal agreement between the Bank and the country for the publication of the aide-me´moires has provoked inconsistencies in the past, as sometimes the WB denied access to aide-me´moires and loan contracts that were disclosed by the national government concerned (Catherine Musuva (ed.), Behind Closed Doors: Secrecy in International Financial Institutions (Cape Town: Institute for Democracy in South Africa and Global Transparency Initiative, 2006), 6). Vince McElhinny, ‘Program for Results System Assessment Criteria: Key Areas Requiring Clarification and Disclosure Prior to World Bank Board Consideration’, 10 October 2011, available at: www.p4rcomments.org, 8–9. This is true in certain conditions for operational policy papers and sector strategy papers. However, consent for that early disclosure by the member country concerned is required for the important Country Assistance Strategy papers, Project Appraisal Documents (which provide the full description of the projects) and Program Documents. E.g. ten years for the verbatim transcripts of Board meetings and the Statements of EDs and staff in that context or the reports to the Board from its Committees (Green Sheets), and twenty years for the Minutes of the Executive Sessions of the Board or the communications and memoranda originating in the ED’s offices.

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Board73 is set up to review the denials of information.74 Sections 24–27 of the AID lay down the procedure to guarantee the right to access disclosed information, with short timelines for responding requests (normally twenty working days), and to know the reasons why a request would be qualified as ‘unreasonable’ or ‘unsupported’75 and so refused. The internal World Bank procedure for the processing of these requests is not established in the AID,76 but when a request is rejected, the notice to the requester has to specify the reasons.77 When a document contains information that falls under one of the exceptions to disclosure, it has to be classified as such by the staff,78 so that the time and discretion needed to respond to information requests is reduced to the minimum. 73

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The Appeals Board comprises three outside experts nominated by the President of the WB and endorsed by the Bank’s Board of EDs. The WB has been the first international financial institution to create an independent body with this kind of competence. The WB set up an Inspection Panel in 1993 (WB, International Bank for Reconstruction and Development, The World Bank Inspection Panel, IBRD Resolution No. 93-10, 22 September 1993) to receive complaints from people harmed by the Bank’s funded projects. Designed as an independent body, it comprises three members with competence to investigate whether the WB has violated its policies or procedures (if the Board of EDs approves the investigation) and to make related findings of harm. However, this body is ill-suited as an instrument to question ordinary denials of access to documents. The importance of the claim has to be high to attain the initiation of an investigation that takes time, is burdensome, and ends up with a mere recommendation, which is sent to the management and the Board (the latter taking the final decision). See Ghazi, The IMF, The World Bank Group 2005 (n 32), 217–221; for a more general comparison, see Daniel D. Bradlow, ‘Private Complaints and International Organizations: A Comparative Study of the Independent Inspection Mechanisms in International Financial Institutions’, Georgetown Journal of International Law 36 (2005), 403–491. The use of the term ‘unsupported’ (which did not appear in the draft policy document) seems to make reference to the need for showing a legitimate interest in the disclosure of information when lodging a request. However, the common explanation of the terms ‘unreasonable or unsupported’ in the AID does not establish such a condition and the WB does not identify the requesters in practice. The draft policy document included some specifications on the processing of requests, but they have not been incorporated into the AID (WB, Operations, Policy and Country Services, ‘Toward Greater Transparency’ 2009 (n 66), 39). Instead, it is established that the Access to Information Committee issues guidelines to staff on policy implementation (WB, ‘AID’ 2010 (n 63), section 35). WB, ‘AID’ 2010 (n 63), section 40. The WB rule on Information Classification and Control Policy was updated (AMS 6.21A) and a handbook with the revised classification policy has been distributed to all the WB staff to facilitate its correct implementation (WB, ‘World Bank Policy on Access to Information Progress Report: November 2009 through September 2010’, 16 December 2010, available at: www-wds.worldbank.org). Nothing is said in the AID about the possibility of declaring documents partially confidential when only a minor part of their content could be considered as such.

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The AIC reviews proposals to disclose information that is on the list of exceptions, and receives and rules on appeals under the AID because it has the power to uphold or reverse prior decisions to deny access, with the exception of decisions made by the Bank’s Board.79 It is to be expected that the AIC will unify the doctrine to avoid past inconsistencies in the disclosure policy.80 In its first months of existence, that AIC has relevantly contributed to the disclosure of restricted information under section 18 of the AID.81 However, it has rejected the eight appeals lodged against the World Bank’s decision to deny access to information.82 This reveals the limited scope of the appeals procedure, where only World Bank organs intervene to define public interests that could take priority over exceptions to disclosure.83 No second-level appeal has yet been filed before the new Appeals Board. A different alternative to obtain information on the World Bank’s decisions and activities is asking the country-partner in the project. National law may provide stronger legal tools to guarantee the right to access such information, and even establish sanctions against the administration for violating this right. However, as we have seen, member States have a great capacity to condition the disclosure policy of the World Bank with regard to their country-specific documents, and it is 79 80

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WB, ‘AID’ 2010 (n 63), section 35. Musuva describes how the same document was released in some cases and considered confidential in others (depending on the country involved) with the excuse in the denials that the documents were part of the Board proceedings and supposed to have a deliberative nature. Another usual concealment technique is the mutual referral of the information request from the government agency to the international financial institution and from the latter to the government (Musuva, Behind Closed Doors 2006 (n 69), 3–5). According to the WB, Access to Information, Annual Report FY 2011 2012 (n 65), 16–17, the AIC decided to disclose restricted information in ten out of the twenty requests received. Nevertheless, in one of these cases, after ruling that the requested documents were ‘covered by the “Deliberative Information” exception under the AI Policy and, thus, there was no violation of the Policy, the AIC decided to exercise the Bank’s prerogative to disclose certain documents’ under WB, ‘AID’ 2010 (n 63), section 18 (WB, ‘World Bank Policy on Access to Information Progress Report: January through March 2011’, 12 July 2011, available at: http://documents.worldbank.org, 13–14). Appeals before the AIC can be based on two grounds: (1) the violation of the AID, or (2) the existence of a public interest that would advise overriding certain policy exceptions. For appeals of the latter kind, the decision of the AIC is final. It is only in the cases where the requester has alleged that the WB has violated the AID (and the AIC has upheld the initial decision to deny access) that a second-level appeal can be lodged before the Appeals Board (WB, ‘AID’ 2010 (n 63), sections 36–38).

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common that those countries presenting most obstacles to the disclosure of their business with the Bank also have the weakest national legislation on freedom of information.84

3.2

Transparency in Decision-making

Most of the comments made with regard to the decision-making process in the IMF could be extrapolated here, as the organic structure of both institutions is similar and, more particularly, the practice of consensus in the Board of Directors, and the weighting of votes assigned to each of the Executive Directors depending on the Bank’s capital share of the countries that he/she represents (which is based on the quotas assigned in the IMF).85 Thus, reference will be made just to some specificities of the World Bank.86 The introduction to the Access to Information Decision stresses the World Bank’s commitment to transparency, promoting the ‘engagement with stakeholders’ in ‘the design and implementation of projects and policies’. However, this statement is seriously questioned by the scope of the disclosure policy exception to protect the deliberative process. While the Bank acknowledges its responsibility to make publicly available its ‘decisions, results and agreements’, it considers it necessary to protect the confidentiality of the processes that led to these decisions in order to preserve ‘the free and candid exchange of ideas’ during its internal deliberative process (section 16, AID).87 This means the exclusion from disclosure of many draft reports,88 statistics or analysis 84

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In a case study that compared the implementation of freedom of information acts in emerging economies with regard to their commitments with the WB and other international financial institutions, Catherine Musuva concludes that the rate of information that could be obtained from the European countries was considerably higher than the rate of disclosure in Africa or Latin America (Musuva, Behind Closed Doors 2006 (n 69), 6–7). Andre´s Rigo Sureda, ‘Informality and Effectiveness in the Operation of the IBRD’, Journal of International Economic Law 6 (2003), 565–596. Like the IMF, the WB has also recently approved a reform of the distribution of the voting power within the organization that gives 47.19% of the votes to developing and transition countries. This represents for them a total shift of 4.59 percentage points since 2008 (WB, ‘World Bank Group Voice Reform: Enhancing Voice and Participation of Developing and Transition Countries in 2010 and Beyond’, DC2010-0006, 19 April 2010). See also the definition of principle 3: ‘Safeguarding the Deliberative Process’, in WB, Operations, Policy and Country Services, ‘Toward Greater Transparency’ 2009 (n 66), paras. 7 and 10. WB, ‘AID’ 2010 (n 63), section 29 states that ‘[d]raft papers are treated as deliberative documents’.

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prepared to inform the decision-making process. Key documents such as Country Assistance Strategies89 or Project Appraisal Documents90 continue to be routinely released only after the Board discussion and approval (their draft version is only made public at the same time that it is distributed to the Board with the country’s consent).91 Therefore, a strong wall continues defending the decision-making process in the World Bank from external interference,92 above all when the countryborrower does not wish to be exposed to public scrutiny, and even though the Board Calendar is published three months in advance. NGOs, national parliaments and affected communities are thus prevented from controlling the executives’ decisions in many cases, because access to the background reports represents an important element of this supervisory activity.93 It is true that relevant social and environmental information (e.g. Environmental Assessment Reports)94 is released before consultations take place and that this has allowed in certain cases movements capable of influencing the final decision of the Bank.95 However, although the World Bank has engaged in discussions with civil society stakeholders96 89

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This document reflects the three-year strategic business plans of the WB for a country. They have been released sometimes in their draft form in the past when they required consultations with civil society partners, but it has not been a consistent practice. They provide the complete description of a project, including the structural reforms that the recipient country has assumed as a condition for the loan. For a complete description of the availability and the timing of release of almost all WB documents, see Bank Information Center, ‘Unlocking the World Bank’s Access to Information Policy: Your Key to the Vault’, July 2011, available at: www.bicusa.org, 6–22. ‘This approach seems to place a premium on reaching final internal consensus before public engagement, which may close off important alternative approaches to development issues’ (GTI, ‘Comments on Toward Greater Transparency’ 2009 (n 65), 9). The WB tries to solve the problem in its new transparency policy by granting access to documents qualified as ‘key process milestones’, which convey the results of its deliberations, and which should be distinguished from other documents considered ‘truly deliberative’ (WB, Operations, Policy and Country Services, ‘Toward Greater Transparency’ 2009 (n 66), 6). Document prepared by the borrower country that explains the possible environmental impact of the project and the measures envisaged to reduce the potential harm. L. David Brown/Jonathan Fox, ‘Transnational Civil Society Coalitions and the World Bank: Lessons From Project and Policy Influence Campaigns’, December 1999, available at: http://papers.ssrn.com. Six hundred NGO representatives participated in the 2011 IMF–World Bank Annual Meeting, a number constantly increasing since 2005. In the previous Civil Society Policy Forum over fifty policy sessions were held on a wide range of topics. As part of the programme, NGOs representatives held a round table with twenty EDs from the IMF

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and has kept open channels of communication with interest groups concerned by its lending activity,97 there is no coherent policy of previous consultation with those affected by its projects.98 In this context, the capacity of civil society organizations (other than those directly involved in the implementation of the projects funded by the Bank) to influence decision-making on financial issues remains in general slim.99 In other aspects of its policies, as for example the drafting of the AID, the World Bank was engaged in a dialogue with expert NGOs that could be considered fruitful. The deliberative exception also covers the Verbatim Transcripts of Board Meetings, the Statements of Executive Directors in those meetings or the Green Sheets submitted to the Board for discussion. As has been explained before, it is only after ten years that access is granted to these documents (and only in the event that they do not contain information not eligible for declassification), while Communications and Memoranda originating in the Executive Directors’ offices are made public after twenty years. These time limits are so long that they may clash with national freedom of information laws.100 From the World Bank’s perspective ‘if the view of each ED is immediately known to the 97

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and the WB. A Civil Society Team, created in 2004, serves as the institutional focal point for the whole WB Group’s engagement with civil society. WB, ‘Guidance Note on Bank Multi-stakeholder Engagement’, June 2009, available at: http://documents.worldbank.org. Daniel D. Bradlow has submitted that by repeatedly responding to public consultation the WB has created an ‘implicit rule-making procedure that involves disclosure of policy drafts, opportunities for public comment (. . .) and explanations of how the public comments have been addressed’ (Daniel D. Bradlow, ‘The Reform of the Governance of the IFIs: A Critical Assessment’, The World Bank Legal Review 3 (2011), 37–58, 44). However, John W. Head considers that multilateral development banks have made a reasonable effort to take into account the point of view of less confrontational NGOs (John W. Head, The Future of the Global Economic Organizations: An Evaluation of Criticisms Leveled at the IMF, the Multilateral Development Banks, and the WTO (Ardsley/New York: Transnational Publishers, 2005), 146–150). The AID does not include a very problematic paragraph of its draft policy paper in which it was pointed out that papers produced or received by EDs’ offices in the conduct of their official duties should be viewed as Bank records and were thus covered by the confidentiality obligation of the Bank’s disclosure policy. The question was troublesome because the text reminded the member States that WB, ‘Articles of Agreement’ 2012 (n 2), art. VII(5) provides that the archive of the Bank shall be inviolable, while art. VII(8) states that EDs are immune from legal process with respect to acts they perform in their official capacity. The inference of this reasoning was that governments receiving information from their EDs were under the obligation to respect the confidentiality of the documents in spite of their freedom of information legislation (WB, Operations, Policy and Country Services, ‘Toward Greater Transparency’ 2009 (n 66), para. 45). The fact that the paragraph is not included in the AID does not mean that

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public, it may put undue pressure on EDs, and could also politicize the Bank’s decision-making process’, above all for those Executive Directors that represent several constituencies.101 Thus, apparently, lack of transparency and unaccountability (even towards the Executive Directors’ own constituencies) is the price to be paid for a consensual and speedy decision-making process in the World Bank.102 This excessive precaution ought to be abandoned as the core elements of the principles of transparency and accountability would call for much shorter periods for the disclosure of the Board debates, and the positions taken by each Executive Director. With the present system, the suspicion remains that major shareholders can use their influence to condition the World Bank’s lending policy for the promotion of their political interests,103 in spite of the impartiality obligation imposed by article IV(10) of the International Bank for Reconstruction and Development (IBRD) Articles of Agreement.104

3.3

Operational Transparency

Traditionally, the activity of supervision, completion and audit of the projects financed by the World Bank was rather opaque, as it could lead

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the problem cannot arise, involving complex national legal proceedings that may affect constitutional rights. WB, Operations, Policy and Country Services, ‘Toward Greater Transparency’ 2009 (n 66), para. 11. Although Board Minutes are routinely posted on the WB web page promptly after the meetings, they just notify the decisions taken, and normally only inform of the vote of those EDs that wish to be recorded as opposed to or abstaining from a specific decision. Many Summaries of Discussion of the Board meetings are also routinely posted on the WB’s web page, but they are very brief and do not give notice of the ED’s individual position, and there are meetings or subjects whose summary is not published (Toby McIntosh, ‘World Bank Releases Few Summaries of Meetings’, 15 October 2010, available at: www.freedominfo.org). Axel Dreher/Jan-Egbert Sturm/James R. Vreeland, ‘Development Aid and International Politics: Does Membership on the UN Security Council Influence World Bank Decisions?’, Journal of Development Economics 88 (2009), 1–18. These authors provide statistical evidence that lead them to conclude that temporary Security Council membership significantly increases the average of WB projects that a country receives. WB, IBRD, ‘Articles of Agreement’ 2012 (n 2), art. IV(10); identical to WB, International Development Association, ‘IDA Articles of Agreement’, available at: http://siteresources.worldbank.org, art. V(6) is in theory applicable to the EDs, but it has no relevance in practice because they often receive instructions from the countries that they represent on the Board, above all when they are appointed by a single member (Ghazi, The IMF, The World Bank Group 2005 (n 32), 88–92).

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to friction with borrower countries and questions about the Bank’s wisdom when deciding to fund a concrete project. Although the World Bank had already enhanced the transparency of these activities in recent years, the Access to Information Decision has brought more light to this part of its decision-making. In any case, some obscurities remain. The numerical and statistical part of the Implementation Status and Results Reports105 are now routinely published ten days after the report approval, but their second part, which includes the staff and management comments and ratings, is not made public (it is considered deliberative information). The Audited Annual Financial Statement of Projects106 (for those projects negotiated after July 2010) is now released when received by the World Bank, and the Implementation Completion Report107 is published after its distribution to the Board. However, the aide-me´moire of operational missions108 cannot be made publicly available without the country/borrower’s consent. Even if they were not involved in the design of a project, NGOs and interested stakeholders have a great interest in the data and operational decisions taken during its development. They may denounce corrupt practices or provide input to the Bank about the best implementation possibilities. Therefore, transparency at the operational level may be as relevant as in the drawing-up of the project. However, we see again that when circumstances become uncomfortable for the borrower country it can always keep its dialogue/debate with the World Bank outside public scrutiny. In theory, this is to facilitate agreements that allow for the projects’ completion.

3.4

Conclusions on World Bank Transparency

It has to be recognized that the World Bank is the international financial institution which has most often been involved in consultations with civil society organizations, and at the same time has developed the most 105

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These reports contain information on the status of implementation and the degree of achievement of the objectives established. It is a formal financial statement by the country/borrower giving notice of all the transactions that it has made with the funds received from the Bank. Evaluation by the WB staff of the results of a programme or project after its completion. This document reflects the decisions and recommendations that a WB mission on the spot has transmitted to the country/borrower and the Bank’s management after an evaluation of the project’s implementation. The cooperation of the country/borrower is necessary for a fruitful visit, and the drafting of this document may involve some degree of negotiation.

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transparent access to information policy. As a development institution, the World Bank receives more added value from transparency than other financial institutions because the design and implementation of its policies will receive input from local communities that will make its projects better adapted to the conditions in the field and thus more effective. However, as happens with the IMF, international financial institutions can only be as open as their member countries are prepared to accept, and some of them do not share the culture of transparency and accountability. Faced with the dilemma of abandoning these countries or establishing a minimum of disclosure acceptable to them, the World Bank chooses the latter and hopes that the general trend towards openness109 will progressively soften those most obdurate. In these blurred circumstances, the most powerful countries continue to enjoy a margin of manoeuvre to defend their political interest in certain projects and on key policy decisions.

4. Transparency in the G-20 The G-20 takes decisions on the basis of consensus. There are no formal votes or voting shares on the basis of economic output, population or any other criteria. No pre-established formal procedure governs decisionmaking, which results from a permanent process of ‘open and constructive discussion’.110 In spite of its limited membership, this involves a great deal of negotiation and redrafting because we find around the table very different countries with diverse (and sometimes confrontational) interests and dissimilar backgrounds. The absence of a formal secretariat enhances the lack of information about decision-making processes. The country chairing the Group creates a temporary secretariat for the duration of its term, coordinates the work and organizes the meetings with great discretion and with the only limits imposed by the other members. The G-20’s web page administered by the presiding country just publishes the communique´s with the decisions taken after the summits and a general work programme. This

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For a review of freedom of information laws, adopted in a progressively increasing number of countries, visit www.freedominfo.org. G-20’s web page, available at: www.g20.org. On this page, it is also said that ‘the influence a country can exert is shaped decisively by its commitment’.

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is made on a voluntary basis as there is no legal obligation to perform this commitment. Aware of the criticism that this lack of transparency has attracted, the G-20 leaders have decided in the Cannes Summit of November 2011 to ask their Sherpas to develop ‘working practices’ for the G-20, and to encourage their engagement with non-members, international organizations and ‘civil society’.111 Nevertheless, the high level of the discussions and their political nature do not provide the ideal environment for transparency. In this context, the open exchange of ideas and the quick adoption of decisions have been clearly prioritized over any kind of disclosure requirements.112 The desire to preserve the informality of the decision-making process explains the widespread opposition to the creation of a permanent secretariat among the members and shows the difficulties that any attempt to establish real transparency obligations in the functioning of the G-20 will encounter. Although several possibilities have been submitted among commentators to provide for the participation of non-G-20 countries, members of national parliaments, business, trade unions or civil society in the G-20 meetings,113 the extension of the number of participants could negatively affect the efficacy of the Group in its decision-making, and thus seems very problematic. The establishment of a permanent secretariat that could create a system of classification and identification of documents, and that could be used as an intermediary between civil society at large and the decision-makers, appears a necessary step to foster transparency within the G-20. The lack of accountability mechanisms and the changing and itinerant nature of its tiny bureaucracy do not make possible the establishment of a reliable disclosure policy.

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G-20, ‘Cannes Summit Final Declaration’, available at: www.g20-g8.com, para. 92. Manuela Moschella, ‘Delegation to and Discretion for the Financial Stability Board and the G20: Transaction Costs or Legitimacy Concerns?’, February 2010, available at: www.garnet-eu.org, 25–26. Barry Carin et al., ‘Making the G-20 Summit Process Work: Some Proposals for Improving Effectiveness and Legitimacy’, June 2010, available at: www.cigionline.org, 12–13; Andrew F. Cooper/Colin I. Bradford, ‘The G-20 and the Post-crisis Economic Order’, June 2010, available at: www.cigionline.org, 11–13; Paola Subacchi/Stephen Pickford, ‘Legitimacy vs Effectiveness for the G-20: A Dynamic Approach to Global Economic Governance’, October 2011, available at: www.chathamhouse.org.

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5. Transparency in the Financial Stability Board (FSB) The FSB has its origin in the creation in 1999 of the Financial Stability Forum. The G-7 mandated Hans Tietmeyer, then President of the Bundesbank, to draft a report to make proposals in order to reduce systemic risk in the international financial system. The fragmentation of financial supervision and regulation throughout the world contributed to the instability of financial markets and the lack of efficacy of public regulatory policies. Although there existed several international standard-setting bodies and various international financial institutions there was insufficient coordination among them, and among the different national authorities. This made financial crises more unpredictable and fostered their spillover across frontiers. The Tietmeyer Report (February 1999) proposed the establishment of a new body to address these challenges. The Financial Stability Forum was born as a network with a small secretariat and a limited membership. It brought together international financial institutions, central banks, transnational regulatory bodies, and national regulatory and supervisory authorities. The objective was to create a tool that would be better suited to prevent global systemic risks and imbalances by integrating the microeconomic and macroeconomic analysis of financial risks in a transversal perspective across market sectors and countries. After the financial crisis of 2007–2008 the G-20 decided to re-found this body (renaming it FSB) and turn it into an institution with enlarged membership and competencies.114 However, it continues to be a network and not an international organization.115 Its charter is a non-binding Memorandum of Understanding signed by its members that ‘is not intended to create any legal rights and obligations’ (article 16).116 From a regulatory perspective, the FSB is assigned important tasks in article 2 of its charter. It advices and monitors best practice in meeting regulatory standards, reviews and coordinates the work of the international standard-setting bodies, and sets guidelines for supervisory 114

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For a review of the membership and competencies of the FSB, see Domenico Lombardi, ‘The Governance of the Financial Stability Board’, September 2011, available at: www. brookings.edu, 5–9; Eric Helleiner, ‘The Financial Stability Board and International Standards’, June 2010, available at: www.cigionline.org, 3–8. The staff of the FSB’s secretariat amounts to twenty people. Most of them are temporarily on loan from other international financial institutions or member countries. FSB, ‘Financial Stability Board: Charter’, available at: www.financialstabilityboard.org.

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colleges.117 It is true that the G-20 establishes in broad terms the key elements of the FSB’s agenda, and that this body is ultimately accountable to the G-20 for its performance, but the bulk of its work relies on the input from its membership. The FSB provides the place and the environment for the exchange of ideas and information between national authorities, standard-setting bodies and international financial institutions so that cross-cutting issues and transversal problems can be analysed more coherently from a systemic point of view. Thus the more general perspective of the FSB helps each of its members to better understand the externalities of its norms and to design regulations better adapted to the systemic context (and therefore more effective). In consequence, the FSB is more a coordinating centre than a decision-making body: it provides the diagnosis and its membership drafts the treatment. Formally, the plenary is the decision-making organ of the FSB and it decides by consensus (article 7 of the charter). This organ meets at least twice a year and has sixty-four members. This downplays the fact that some countries are given one, two or three seats depending on the size of their financial markets and their financial stability. The plenary decides on the composition of the Steering Committee118 and may create Standing Committees and Working Groups. In fact, it is the Steering Committee that conducts the activity of the FSB. It also decides by consensus, though this is not explicitly established in the charter. Neither the FSB’s charter nor its web page offer any explanation on how the Steering Committee is accountable to the rest of the membership or on the kind of information that it has to provide to the plenary or the rest of the membership,119 in a context of widespread flexibility and

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From a normative perspective, the FSB adopts reports, principles, standards, recommendations and guidance (ibid., art. 7(c)), and may even issue warnings to its members (in collaboration with the IMF – ibid., art. 2(h)). It also performs a monitoring function of members’ regulatory standards and of standard-setting bodies’ work (ibid., art. 2(d) and (e)). For a discussion on the nature of the FSB’s normative role, see Larry C. Backer, ‘Private Actors and Public Governance beyond the State: The Multinational Corporation, the Financial Stability Board, and the Global Governance Order’, Indiana Journal of Global Legal Studies 18 (2011), 785–791. There are no objective criteria to determine the composition of this organ beyond the very general reference in FSB, ‘Charter’ (n 116), art. 12 to the need to ensure a ‘balanced representation in terms of geographic regions and institutional functions’. The FSB is currently debating to modify the composition of this committee. Ibid., art. 13(4)(c) simply states that the Steering Committee ensures effective information flow to all members.

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discretion.120 Thus, no strong mechanism of accountability compensates for the lack of transparency. It may be argued that the limited membership and its homogeneous background as financial regulators/supervisors facilitate the flow of information better than any transparency and reporting requirements.121 While this might be true from an internal point of view, the problem of external transparency remains unaddressed. The fact that the FSB performs more a coordinating role than a legislative one does not justify the overall absence of a disclosure policy. While it is easy to understand that quick and efficient decision-making procedures are necessary to confront systemic risks in times of crisis, and that some economic discussions or the handling of certain delicate financial information may require an important degree of confidentiality, the establishment of a clear and comprehensive transparency policy by the FSB should not be deferred. As the recent reforms in the IMF and the World Bank have shown, the high degree of technicality of its work does not pose an insurmountable obstacle. In spite of the mandate of article 3 of the FSB’s charter to engage in wide consultations with stakeholders including private-sector and nonmember authorities, this body has not established a comprehensive policy of public engagement with interested stakeholders or NGOs in the development of its activities.122 The small size of its secretariat and the ambience of ‘central bank discretion’ that pervades its work explain this fact. Nevertheless, the FSB has launched some public consultations on policy measures,123 and it relies indirectly on that kind of interaction when it receives input from its membership (who also engage in consultations eventually). However, apart from these sporadic initiatives, only powerful interested stakeholders capable of successfully lobbying FSB’s members can exert some influence in the output, and that of course is beyond public scrutiny.

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The FSB’s web page just gives notice of the composition of these organs. The Chair enjoys ample discretion in the performance of its functions. Besides, the chairs of Standing Committees are selected from and appointed by the plenary at the Chair’s recommendation and membership in Standing Committees and working groups is decided by the respective chairs in consultation with the Chair (ibid., art. 11). Moschella, ‘Financial Stability Board and the G20’ 2010 (n 112), 18–20. Lombardi, ‘The Governance of the FSB’ 2011 (n 114), 18–19. FSB, ‘Effective Resolution of Systemically Important Financial Institutions: Overview of Responses to the Public Consultation’, 4 November 2011, available at: www.financialstabi lityboard.org.

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With regard to its relation with non-members, the FSB has tried to offset its limited membership and to increase the outreach of its work, approving in July 2011 the establishment of six regional consultative groups in which it expects to involve seventy non-member countries. Only the future will tell whether this initiative brings more legitimacy and projection to the FSB’s work, but it will be a complex process that requires a considerable increase in the FSB’s resources. In any case, the present lack of transparency in the FSB’s decision-making process appears a serious hindrance to non-member countries’ interest in becoming effectively involved in these regional groups, unless they are given a real chance to influence its results.

6. Final Remarks This chapter shows that a higher degree of institutionalization calls for a more coherent and open transparency policy, as more structured institutions have at their disposal the appropriate resources and are more easily subject to pressure by civil society. The IMF and the World Bank are clearly more transparent than informal cooperation forums such as the G-20 or the FSB. As a development institution, the World Bank gets more benefits from transparency, and it has achieved a remarkable level of procedural guarantees that could be seen as an example for other international financial institutions, including the IMF. However, in practice, even in the World Bank there is excessive latitude for opaqueness. It has to be recognized that some expert NGOs124 have developed an impressive effort in lobbying for increased international financial institutions’ transparency. They may not have had a great influence on policy design but their very high-quality technical work has made a substantial contribution towards the improvement of international financial institutions’ transparency policies. Today, the IMF and the World Bank are more transparent than most international organizations. Despite this significant improvement, international financial institutions’ access to information policies are very complex and that is in itself an important barrier to transparency. The language used is often vague, deliberately leaving great discretion to the institution. If confidentiality is clearly justified on some occasions, general policies or loans conditionality should always be disclosed and subject to public scrutiny, as the 124

We refer to NGOs such as GTI, Bank Information Center and freedominfo.org.

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design of the monetary and budgetary policy or the configuration of a country’s financial markets cannot be qualified as a mere ‘technical decision’. We should not underestimate the worries of international financial institutions’ staff about the damage that excessive transparency could cause to the effectiveness of their mandate. Negotiations on the regulation of financial markets, spending cuts, or budgetary priorities cannot succeed without free exchanges of ideas and a certain degree of pressure that would not be feasible with constant public exposure. Thus, an excessive degree of disclosure would likely transfer the most sensitive negotiations to less formal and more opaque forums and would seriously hamper the role of international financial institutions as trusted advisors. Nevertheless, the analysis in this chapter shows that there is scope for more openness in international financial institutions’ policies without harming their functions. Opaque member countries pose the main obstacle for a positive evolution of these policies. As regards less formal cooperation bodies, the implementation of a coherent transparency policy in the FSB would entail an increase in its tiny resources and some degree of institutionalization. The desire to make efficacy prevail over legitimacy or good administration explains its present institutional design. While the severe limitations on transparency in the G-20 may be easier to understand due to the high level of the participants, the political nature of the bargaining and the very general character of the commitments assumed, the FSB should take its problem of opaqueness more seriously. Its involvement in the work of standard-setting bodies that is afterwards transformed into national legislation with little room for manoeuvre raises important concerns about the democratic control of the regulation of financial markets and the policy options behind the technical measures proposed to govern them. The important repercussions that international financial institutions’ decisions have over the life conditions of millions of people call for greater transparency. International financial institutions’ human resources are of course limited, but for the information not posted on the international financial institutions’ web pages there should be a request procedure with strict time limits for the response;125 denials of information should be accompanied by a statement of reasons, and an appeals 125

Unfortunately, mute refusals of information (lack of response) continue to be common in the world of international financial institutions.

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procedure should offer the opportunity for independent review of the judgement of the staff most directly involved. Only the World Bank approaches this standard, albeit with serious limits. Financial markets are global, and therefore global and transparent international financial institutions should govern them. Opaqueness does not protect the independence and objectivity of public regulators from the excessive influence of the financial industry, as the latter always find ways to lobby in favour of their interests. Lack of transparency normally works against the interests of the average citizen.

5 Institutional Transparency in the WTO panagiotis delimatsis*

The WTO needs to be efficient, decisive, inclusive in its deliberations, attuned to the world outside and trusted.1

1. Introduction The World Trade Organization (WTO) is the institutionalized umbrella of the multilateral trading system succeeding the previous diplomacy-based General Agreement on Tariffs and Trade (GATT).2 The organization itself is an immediate derivative of the development of a globalized economy and society resulting from increasing global economic interdependence and functional differentiation at the institutional level. Due to the quickly expanding rule-based (as opposed to power-based)3 system and the increasing pace of globalization, the WTO became a target for stakeholders’ demands for more openness in its processes. This is no coincidence: the legitimacy of the WTO, and notably of its judicial organs,4 was questioned in the early years of the organization after some controversial rulings delivered by the WTO adjudicating bodies. Notably, * Many thanks go to Andrea Bianchi, Manfred Elsig, Daniel Magraw, Petros Mavroidis and Anne Peters for insightful comments and suggestions. Possible errors and misconceptions are the author’s sole responsibility. 1 Peter Sutherland et al., The Future of the WTO: Addressing Institutional Challenges in the New Millennium (Geneva: WTO, 2004) (Sutherland Report), 69. 2 Also John H. Jackson, ‘The Evolution of the World Trading System – The Legal and Institutional Context’, in Daniel Bethlehem et al. (eds.), The Oxford Handbook of International Trade Law (Oxford University Press, 2009), 30–53. 3 Cf. Richard Steinberg/Jonathan Zasloff, ‘Power and International Law’, American Journal of International Law 100 (2006), 64–87. 4 Cf. Robert Howse, ‘The Most Dangerous Branch? The WTO Appellate Body Jurisprudence on the Nature and Limits of the Judicial Power’, in Thomas Cottier/ Petros Mavroidis (eds.), The Role of the Judge in International Trade Regulation (Ann Arbor: University of Michigan Press, 2001), 11–42.

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the new Appellate Body, the WTO’s last-instance standing court, issued decisions on politically charged and highly mediatized disputes, particularly in the developed world. Such rulings, for instance, condemned the EU ban on genetically modified products; the EU preferences for the importation of bananas from the EU former colonies (the African, Caribbean and Pacific Group of States (ACP)); and the US import prohibition of shrimps based on environmental grounds. Ironically, it was the most powerful countries that insisted on the inclusion of an effective dispute settlement system during the Uruguay Round negotiations.5 Transparency finds its place within the WTO in two main distinct, albeit interconnected, settings: the first relates to the WTO decisionmaking procedures, whereas the second is concerned with the level of transparency in the WTO dispute settlement mechanism as laid down in the Dispute Settlement Understanding (DSU). This chapter is aimed at covering the role of transparency within these two main functions of the WTO. Due to the importance of the WTO’s dispute settlement system and its enforcement mechanism, the legitimacy of the organization stays at the epicentre of debates in the academic community and civil society.6 The mere fact that the need for increased transparency of judicial procedures and broader participation in the decision-making processes of the WTO has been voiced so emphatically is, in a sense, evidence of the success of the WTO.7 This chapter is structured as follows: in section 2, the transparency of the WTO decision-making procedures is analyzed. Section 3 reviews the transparency aspects of the WTO dispute settlement system. Section 4 constitutes an attempt to critically approach the issue of how to improve internal (i.e. involving the openness of the decision-making process to the WTO membership) and external (i.e. referring to the WTO’s openness to the public, including other organizations, NGOs and the civil society) transparency in the WTO decision-making and judicial procedures. Section 5 concludes with some thoughts about the future prospects of transparency within the WTO.

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Cf. Joel P. Trachtman, ‘The Constitutions of the WTO’, European Journal of International Law 17 (2006), 623–646, 634. Cf. Allen Buchanan/Robert O. Keohane, ‘The Legitimacy of Global Governance Institutions’, Ethics and International Affairs 20 (2006), 405–437, 405. Cf. Marcos Orellana, ‘WTO and Civil Society’, in Bethlehem et al. (eds.), Oxford Handbook 2009 (n 2), 671–694, 683.

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2. Transparency in WTO Decision-making Processes Transparency is of fundamental importance to all international organizations because it can foster commitment and compliance.8 For the multilateral trading system, compliance with the rules that are enshrined in the WTO agreements is necessary for the functioning of everyday trade. Furthermore, compliance is inextricably linked with the viability of the WTO and its legitimacy as an organization. In other words, a lawmaking process perceived to be illegitimate is likely to be disregarded or undermined.9 The WTO agreement establishes an international organization with legal personality and endows it with explicit authority to develop and maintain relations with other international organizations. Pursuant to article III(5) of the WTO agreement, the WTO is called upon to cooperate in particular with the international organizations in charge of monetary and financial matters and thereby achieve coherence.10 Based on this ‘coherence mandate’, the WTO signed agreements with both the International Monetary Fund (IMF) and the World Bank.11 With regard to non-State actors, the WTO agreement also authorizes the organization to consult and cooperate with NGOs.12 In 1996, the General Council adopted general guidelines on relations with NGOs and referred to the important role that NGOs can play to increase the awareness of the public of WTO activities.13 Over time, NGOs have managed to exert considerable influence in some areas (such as the current negotiations on fisheries subsidies), whereas they regularly submit amicus curiae briefs in the WTO dispute settlement system.

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Even if there is a universal demand for more transparency in international law, this may not refer to all institutions across the board. See, for instance, Steven Ratner, ‘Behind the Flag of Dunant: Secrecy and the Compliance Mission of the International Committee of the Red Cross’, chapter 12 in this volume. Cf. Alan Boyle/Christine Chinkin, The Making of International Law (Oxford University Press, 2007), 25. Cf. Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, 1869 UNTS 3 (WTO Agreement), art. V(1); also Marc Auboin, ‘Fulfilling the Marrakesh Mandate on Coherence: Ten Years of Cooperation Between the WTO, IMF and World Bank’, WTO Discussion Paper No. 13 (2007). WTO, Agreements between the WTO and the IMF and the World Bank, WT/L/194, 18 November 1996. WTO Agreement, 1994 (n 10), art. V(2). WTO, Guidelines for Arrangements on Relations with Non-governmental Organizations, WT/L/162, 23 July 1996.

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The WTO’s supreme organ is the Ministerial Conference which takes decisions in all matters under any WTO agreement. In principle, the Ministerial Conference meets at least once every two years. However, after the Conference of 2005 in Hong Kong, members avoided organizing ministerial conferences in view of the stalemate in the Doha negotiations and the seemingly unbridgeable divergence of negotiating positions. The Conference met again in 2009 in Geneva amidst the most severe financial crisis of recent years, only to agree that there are diverging views amongst WTO members about the way forward. As a sign of the divergence among members, the Conference of 2009 did not adopt a declaration at its closure.14 In practice, the Ministerial Conference decides upon a pre-established agenda of items that is prepared by the General Council and in regular meetings of heads of delegations. Such preparations may include a series of both publicly available and informal documents.15 In other words, not all documents of the WTO are publicly available at the time of their circulation to members.16 While documents submitted by members can in principle be restricted for up to ninety days, members often decide during a meeting to switch to informal mode. In the latter case, the minutes of the meetings only reflect the main positions without attributing these to specific members. The General Council is the everyday decision-making body of the WTO, ensuring the smooth functioning of the organization. Very often the competences of the Ministerial Conference and the General Council overlap.17 For instance, while in theory waivers are to be granted by the Ministerial Conference pursuant to article IX(3) of the WTO agreement, in many cases the General Council took over this responsibility. However, upon the launching of the new negotiating round in Doha, it was the Ministerial Conference that granted the ACP waiver with regard to the preferential access of ACP exports of bananas to the EU market. 14

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Having said this, the Ministerial Conference agreed to extend two previously decided moratoria, one on the non-imposition of duties on e-commerce and the second on the non-filing of non-violation complaints under the Agreement on Trade-related Aspects of Intellectual Property Rights, 15 April 1994, 1869 UNTS 299 (TRIPS). In the last Ministerial Conference of December 2011, members again refrained from adopting a Ministerial Declaration, but decided to resume work on e-commerce. Cf. WTO, General Council, Minutes of Meeting Held on 27 July 2011, WT/GC/M/132, 21 September 2011, paras. 68–71. However, all official WTO documents shall be unrestricted. See WTO, Procedures for the Circulation and Derestriction of WTO Documents, WT/L/452, 16 May 2002. Cf. WTO Agreement, 1994 (n 10), art. IV (2).

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Similarly, in the case of accession to the WTO, whereas the treaty invests the Ministerial Conference with such authority,18 accession of a given country to the WTO was sometimes approved by the General Council.19 Consensus is the form of WTO decision-making par excellence. The WTO agreement confirms that the WTO is bound to continue the practice of consensus of the GATT 1947.20 Consensus in the WTO does not mean unanimity, but rather is met when no member present in the meeting formally objects to a decision.21 Without consensus, various qualified majority voting procedures may come into play.22 Qualified majority procedures relate to the entire membership and not just to the members that are present. Be that as it may, consensus is the informal voting rule in the WTO and has remained hale and hearty throughout the years, as exemplified by the ongoing Doha negotiations.23 Consensus involves a bias towards lowest-commondenominator outcomes.24 On the other hand, one of the main traits of consensus is that it discourages any attempt at hijacking decisionmaking and agenda-setting procedures. This was a concern in the GATT already in the 1950s in the wake of the accession of various developing countries.25 Unlike the IMF or the World Bank, the WTO does not have an executive organ of restricted composition. On the other hand, it must be noted that the WTO has an almost disproportionate number of committees and other working parties, which multiply during negotiating rounds. Such a structure can easily cause a sclerosis in the functioning of the institution. In the GATT years, decisions were reached by 18 20

21 22

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25

Cf. ibid., art. XII. 19 For instance, Ukraine’s accession in 2008. Although WTO Agreement, 1994 (n 10), art. IX suggests so, the legal text of GATT 1947 did not explicitly refer to consensus. As a matter of fact, GATT 1947, art. XXV(4) provides that decisions shall be taken by majority of the votes cast. WTO Agreement, 1994 (n 10), art. IX and the accompanying footnote. However, for amendments of WTO Agreement, 1994 (n 10), art. IX or the nondiscrimination provision, unanimity is warranted. Ironically, the modalities of art. IX are being amended in practice, inasmuch as the qualified majority provisions have never been applied. But, cf. also WTO, Rules of Procedure for Sessions of the Ministerial Conference and Meetings of the General Council, WT/L/161, 25 July 1996, rule 29 (Ministerial Conference) and rule 33 (General Council). Cf. WTO, General Council, Minutes of Meeting Held on 17 and 19 July 2000, WT/GC/ M/57, 14 September 2000, para. 134. Cf. Patrick Low, ‘WTO Decision-making for the Future’, WTO Staff Working Paper ERSD-2011–05 (2 May 2011). See Richard Steinberg, ‘In the Shadow of Law or Power? Consensus-based Bargaining and Outcomes in the GATT/WTO’, International Organization 56 (2002), 339–374, 344.

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consensus, but only a like-minded minority amongst the members was leading the process, the so-called Green Room process.26 Even if the WTO is based on the one-country-one-vote principle (thereby giving each member a veto right),27 it has become clear over the years that vetoes are rare and the agenda is virtually pre-determined through early meetings among those countries whose consent is considered indispensable for reaching consensus at the plenary. Those countries are usually either powerful members, in terms of trade volume, or members that represent a position that is likely to be adopted by a group of WTO members. During the informal Green Room process, a small number of self-selected developed and developing countries convene to decide on divisive issues.28 Once an agreement is reached in the Green Room, the decision is conveyed to the WTO members for final decision. This is yet another indication of the GATT/WTO power politics at play in the decision-making process. The Green Room process, initially reserved to the big developedcountry delegations, grew within the WTO to involve an increasing number of countries, both developed and developing, notably in the aftermath of the failure of the Ministerial Conference in Seattle. Along with the usual suspects (i.e. EU, US, Japan and Canada), such meetings cannot be convened nowadays without the participation of Brazil, China, India and other countries. These members often also represent members of at least one coalition of WTO members, such as the Cairns group, the G-20, G-30 or the so-called ‘friends’ of a given subject. These coalitions have their own internal networks (sometimes including NGOs)29 with respect to transparency, coordination, communication of positions, participation and inclusiveness. Despite informal efforts to open up the Green Room process, more transparency, representativeness and accountability at the highest decision-making level within the WTO is warranted. This can be done by developing a structure of constituencies organized along regions or 26

27 28

29

‘Green Room’ is the informal name of the conference room of the GATT (now WTO) Director-General. WTO Agreement, 1994 (n 10), art. IX(1). Richard Blackhurst/David Hartridge, ‘Improving the Capacity of WTO Institutions to Fulfill their Mandate’, Journal of International Economic Law 7 (2004), 705–716. See Pedro da Motta Veiga, ‘Brazil and the G-20 Group of Developing Countries’, in Peter Gallagher/Patrick Low/Andrew Stoler (eds.), Managing the Challenges of WTO Participation (Geneva/Cambridge: World Trade Organization/Cambridge University Press, 2005), 109–119.

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common interests. Another option would be to create a consultative or executive board within the WTO. It could include a number of permanent members and a number of rotating countries based on their trade volume; population; geographical position; or a combination of these criteria. The composition of this organ should be flexible to ensure representativeness and realities of trade volumes. Overall transparency and due process need to be taken into consideration as essential prerequisites of any reform of the decision-making process within the WTO.30 Even the most vulnerable WTO members do not really mind having club-model processes such as the Green Room or the proposed Board, but they want to have their views heard.31

3. Transparency in WTO Adjudication 3.1

Transparency in the Panel and Appellate Body Proceedings

In light of the crisis of the multilateral trading system, the fate of the Doha Round being uncertain, debates over WTO adjudication prevail as the burden for the evolution of WTO law inevitably shifts towards the dispute settlement system.32 Within this context, voices for more transparency in the judicial processes acquire particular weight, as, without any development at the political level, the WTO Appellate Body members are in charge of the development of WTO law. Transparency is mentioned only once in the DSU.33 However, this says nothing about the current level of transparency in the dispute settlement system. Indeed, while the dispute settlement system is built upon the principle of confidentiality, which means that much occurs à huis clos, a great deal has been done towards improving internal and external transparency with a view to increasing the legitimacy of WTO dispute settlement and the 30

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Such a reform would necessitate a more active role for the secretariat. See also Sutherland et al., Sutherland Report 2004 (n 1), 72; also Manfred Elsig, ‘WTO Decision-making: Can We Get a Little Help from the Secretariat and the Critical Mass?’, in Debra Steger (ed.), Redesigning the World Trade Organization for the Twenty-first Century (Waterloo: Wilfrid Laurier University Press, 2010), 67–90, 72. Robert O. Keohane/Joseph Nye, ‘The Club Model of Multilateral Cooperation and the World Trade Organization: Problems of Democratic Legitimacy’, The John F. Kennedy School of Government – Visions of Governance in the 21st Century, Working Paper No. 4 (2001), 6. Cf. Piet Eeckhout, ‘The Scales of Trade – Reflections on the Growth and Functions of the WTO Adjudicative Branch’, Journal of International Economic Law 13 (2010), 3–26, 5. See Understanding on Rules and Procedures Governing the Settlement of Disputes, 15 April 1994, 1869 UNTS 401 (DSU), appendix 3: Working Procedures, para. 10.

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confidence of its members in it. Having said this, there are certain processes, from the deliberations among panellists or the Appellate Body members to the exchange of views shortly before the finalization of the Appellate Body Report, that are opaque by nature.34 The DSU establishes the first compulsory third-party adjudication system in the history of international law. It is a State-to-State, twoinstance dispute settlement system, access to which is limited to WTO members.35 The system is rather automatic in that the judicial process through the two instances can proceed despite the contrary view of the respondent. Thus, the system arguably is controlled by the complainant who is nonetheless expected to act in good faith36 and in accordance with all procedural guarantees laid down in the DSU and developed by case law from the consultation stage to the stage of suspension of concessions. At no stage is it possible for the respondent to block the judicial process other than the first time that the request for the establishment of a panel is lodged with the Dispute Settlement Body (DSB). From the next meeting onwards, the reverse consensus rule applies.37 As the whole system is administered by the DSB, a political body composed of all WTO members that also approves of panel and Appellate Body Reports – albeit by reverse consensus – the DSU is often referred to as establishing a judicial system with a strong political component. Panels are ad hoc, whereas appeals are ruled upon by the standing Appellate Body. Procedural transparency in the two instances is uniform, with few special provisions listed in appendix 2 to the DSU (for instance, relating to the choice of experts under the Agreement on Technical Barriers to Trade and the Agreement on the Application of Sanitary and Phytosanitary Measures, or to the deferential standard of review under the Anti-dumping Agreement). On average, two out of

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Cf. on the secrecy of deliberations in international adjudication Thore Neumann/ Bruno Simma, ‘Transparency in International Adjudication’, Chapter 17 in this volume. See WTO, United States – Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body of 12 October 1998, WT/DS58/AB/R, para. 101. WTO, Mexico – Anti-dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States: Recourse to Article 21.5 of the DSU by the United States, Report of the Appellate Body of 22 October 2001, WT/DS132/AB/RW, paras. 73–74. The reverse consensus rule implies that decisions within the DSB will be taken unless all members (including the complainant) agree not to take such decisions.

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three panel reports are appealed in the WTO,38 whereas in 85% of appeals the Appellate Body reversed or modified the Panel’s findings.39 Pursuant to article 3(2) DSU, the WTO dispute settlement system is instrumental in providing legal certainty and predictability in the multilateral trading system. These traits are inextricably linked to the legitimacy of the WTO judicial procedures. Even in the absence of any explicit binding precedent within the WTO legal order, this objective is served through the enhanced ‘legalization’ or ‘juridification’ of dispute settlement panel proceedings and the creation of a standing Appellate Body. WTO settled case law suggests that adopted panel and Appellate Body reports are an important part of the GATT acquis and create legitimate expectations among WTO members.40 The Appellate Body has also stated emphatically that it is expected for panels to follow the Appellate Body’s conclusions in earlier disputes, particularly where the issues or the legal questions are the same, without cogent reasons.41 Panels are to follow the Appellate Body rulings also because of the hierarchical structure that the DSU contemplates.42 Ad hoc panels are typically composed of three panellists upon proposal by the WTO Secretariat to the parties. If they disagree, either party can ask the WTO Director-General to appoint the panellists.43 This practice is the prevailing one nowadays.44 Article 12(8) DSU foresees a 38 39

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WTO, Appellate Body Annual Report for 2010, WT/AB/15, 18 July 2011, 5. Thomas Bernauer/Manfred Elsig/Joost Pauwelyn, ‘The World Trade Organization’s Dispute Settlement Mechanism – Analysis and Problems’, in Amrita Narlikar/Martin Daunton/Robert Stern (eds.), The Oxford Handbook on the World Trade Organization (Oxford University Press, 2012), 485–506. WTO, Japan – Taxes on Alcoholic Beverages, Report of the Appellate Body of 4 October 1996, WT/DS10/AB/R, WT/DS11/AB/R, WT/DS8/AB/R, 14. WTO, United States – Sunset Reviews of Anti-dumping Measures on Oil Country Tubular Goods from Argentina, Report of the Appellate Body of 29 November 2004, WT/DS268/ AB/R, para. 188; and WTO, United States – Final Anti-dumping Measures on Stainless Steel from Mexico, Report of the Appellate Body of 30 April 2008, WT/DS344/AB/R, para. 160. WTO, United States –Stainless Steel (n 41), para. 161. On a certain issue, the so-called ‘zeroing’, panels deviated from previous Appellate Body rulings, causing confusion, frustration and uncertainty. See also WTO, United States – Continued Existence and Application of Zeroing Methodology, Report of the Appellate Body of 4 February 2009, WT/DS350/AB/R, paras. 305–311. For more details, see David Palmeter/Petros Mavroidis, Dispute Settlement in the World Trade Organization – Practice and Procedure (Cambridge University Press, 2nd edn, 2004), 106–107. The Director-General’s discretion in this respect is not subject to judicial review. See WTO, United States – Laws, Regulations and Methodology for Calculating Dumping

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six-month deadline for the finalization of the panel proceedings. In practice, panel reports take more than a year to circulate. Beyond the increasing complexity of the issues raised and the need for expert opinions, another factor that delays panel proceedings is the existence of an interim review stage which gives the opportunity to the parties (not to third parties) to submit comments on the draft panel report.45 Panels (along with experts and other participants in the panel proceedings such as members of the WTO Secretariat) are bound by the Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes, aimed at ensuring integrity, impartiality and confidentiality.46 As to the actual panel proceedings, there is no uniformity, but panels are allowed to draw their own working procedures (based on appendix 3 to the DSU), notably with respect to the order of presentation in panel meetings; time limits; or the service of documents. The Appellate Body has regularly stated that the existence of detailed standardized panel working procedures would enhance fairness and due process.47 Whenever expert groups are established (for instance, in cases relating to sanitary and phytosanitary measures),48 they are bound by the rules set out in appendix 4 to the DSU. The legal basis for appointing experts is article 13 of the DSU establishing the panels’ right to seek information from individuals or to consult experts.49 In US – Continued Suspension (Hormones), the Appellate Body discussed one particular aspect of the Rules of Conduct relating to disclosure of information that may raise doubts about the independence and impartiality of experts. The Appellate Body found that independence and impartiality of experts is a necessary condition to ensure the fairness and impartiality of the panel

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Margins (‘Zeroing’) Recourse to Article 21.5 of the DSU by the European Communities, Report of the Appellate Body of 14 May 2009, WT/DS294/AB/RW, para. 172. DSU, 1994 (n 33), art. 15; see also William Davey, ‘Expediting the Panel Process in WTO Dispute Settlement’, in Merit Janow/Victoria Donaldson/Alan Yanovich (eds.), The WTO: Governance, Dispute Settlement and Developing Countries (Huntington: Juris Publishing, 2008), 409–470. WTO, Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes, WT/DSB/RC/1, 11 December 1996. See WTO, Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines, Report of the Appellate Body of 17 June 2011, WT/DS371/AB/R, para. 148. See also Agreement on the Application of Sanitary and Phytosanitary Measures, 15 April 1994, 1867 UNTS 493, art. 11(2). This provision has also been used to justify the submission of amicus curiae briefs, as discussed below.

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decision-making process.50 In its view, a panel’s selection of and consultation with experts form part of due process that the WTO adjudicating bodies are required to protect.51 The findings of the Appellate Body relating to disclosure of potential conflicts of interest apply with equal force to both the panel and Appellate Body Working Procedures,52 and to the persons involved, including the Appellate Body members and the staff of the Appellate Body Secretariat. The Appellate Body is composed of seven members each appointed for a four-year term, with a possibility of being reappointed only once. Not all members are appointed or replaced simultaneously. Appellate Body members are selected through a process that is run by a Selection Committee, presided over by the DSB Chair and consisting of the Director-General and the chairpersons of the General Council, the Goods Council, the Services Council and the TRIPS Council.53 The Selection Committee receives nominations by WTO members, conducts interviews with candidates and hears the views of the delegations that want to be heard. Adequate geographical representation is a key criterion in the selection process. Appeals in the Appellate Body are heard by a division of three Appellate Body members. Even so, all Appellate Body members receive the documents filed in an appeal.54 This is particularly important for the exchange of views among Appellate Body members that takes place after the oral hearing and before the division finalizes the Appellate Body report.55 The exchange of views is a crucial stage in the Appellate Body’s collegial decision-making for ensuring consistency and coherence of WTO case law.56 Divisions are selected in a manner that ensures randomness, unpredictability and the opportunity for all members to serve

50

51

52

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54 56

Cf. Michelle Grando, Evidence, Proof, and Fact-finding in WTO Dispute Settlement (Oxford University Press, 2009), 33. WTO, US – Continued Suspension of Obligations in the EC – Hormones Dispute, Report of the Appellate Body of 16 October 2008, WT/DS320/AB/R, paras. 436 and 480. See WTO, Working Procedures for Appellate Review, WT/AB/WP/6, 16 August 2010. The Appellate Body Working Procedures have been amended six times since 1995. See WTO, Establishment of the Appellate Body – Recommendations by the Preparatory Committee for the WTO Approved by the Dispute Settlement Body on 10 February 1995, WT/DSB/1, 19 June 1995, para. 13. Ibid., rule 4(2). 55 Ibid., rule 4(3). Ibid., rule 4; also Alberto Alvarez-Jimenez, ‘The WTO Appellate Body’s Decisionmaking Process: A Perfect Model for International Adjudication?’, Journal of International Economic Law 12 (2009), 289–331, 302.

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irrespective of their nationality.57 Thus, it regularly happens that one of the members of the division is a national of one of the parties to the dispute. This may also be the case in the composition of the panels provided that there is agreement between the parties to the dispute pursuant to article 8(3) DSU. Contrary to other international tribunals, the Appellate Body members do not have their own law clerks, that is, personal staff allotted to a given individual Appellate Body member who are expected to work on the specific issues of interest to that member. Rather, these functions are performed by the Appellate Body Secretariat on a random basis pursuant to article 17(7) DSU. Whereas introducing a clerkship system would help individual Appellate Body members to have a broader control over and feel ownership of Appellate Body rulings, the current system has allowed retention of the ninety-day deadline for the circulation of the Appellate Body report pursuant to article 17(5) DSU. Taking into account that remedies in the WTO are prospective in nature,58 meeting the strict deadlines of the DSU becomes quintessential. Depending on the complexity of the appeal, the division dealing with a given appeal may be assisted by at least two lawyers of the Appellate Body Secretariat. The staff members of the Secretariat, the panellists, arbitrators and experts are bound by rules of conduct which are aimed at ensuring integrity, independence, impartiality, the avoidance of conflicts of interest and the confidentiality of the proceedings.59

3.2

Selected Issues Regarding Internal Transparency

3.2.1 Confidentiality of Proceedings The documents initiating consultations, i.e. the first, but required, step for a dispute to reach the two-instance judicial structure of the WTO, are available on the WTO website. The same applies to requests for the establishment of panels and other documents which typically contain certain requests directed to the panels or notifications to the DSB. Furthermore, notices of appeal are also made public. Additionally, both panel and Appellate Body reports contain summaries of the parties’ 57

58

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Appellate Body membership shall be ‘broadly representative’ of the WTO membership (DSU, 1994 (n 33), art. 17(3)). WTO, United States – Subsidies on Upland Cotton: Recourse to Article 21.5 of the DSU by Brazil, Report of the Appellate Body of 2 June 2008, WT/DS267/AB/RW, para. 243, fn. 494. See WTO, Working Procedures, 2010 (n 52), 16.

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written submissions and oral statements. Otherwise, the DSU provides that both panel deliberations and Appellate Body proceedings shall be confidential.60 The same holds true for consultations pursuant to article 4(6) DSU. A possible avenue for WTO members to access the documents relating to a dispute (e.g. written submissions) without incurring the high costs of being a complainant in a dispute is to participate as third parties. Members, and particularly developing countries, can thereby become acquainted with WTO litigation and become privileged observers of proceedings in a given dispute. Under certain circumstances, third participants may be allowed to participate as passive observers, i. e. without submitting any documents or making oral statements.61 As of the end of 2010, developing countries have acted before the Appellate Body as third participants 291 times. However, this figure is misleading: by 2010, only sixty-seven members participated in appeals either as parties or third participants. From those, less than sixty developing countries have had the opportunity to be directly involved in a dispute.62 Thus, an incremental shift towards public hearings would allow all those members who have never attended an Appellate Body hearing to become familiar with the proceedings of the WTO supreme judicial organ. Article 10 DSU provides that third parties must have a substantial interest in that dispute and shall have notified that interest to the DSB. Such notifications will typically occur during the DSB meeting where the panel to a particular dispute is established. The requirement of having a substantial interest in the case has been interpreted rather loosely. Particularly in the first years of its existence, the WTO adjudicating bodies rather encouraged the participation of third parties. There are two main reasons for this: first, the WTO texts were not models of clarity. Rather, constructive ambiguity was part and parcel of the final agreement, reflecting unabridged differences among the negotiators. Thus, the more members participate in the WTO dispute settlement system, the more likely it is that the adjudicators will become aware of prevailing opinions and interpretations among members. Second, willingness to 60 61

62

DSU, 1994 (n 33), arts 14(1) and 17(10), respectively. WTO, Argentina – Safeguard Measures on Imports of Footwear, Report of the Appellate Body of 14 December 1999, WT/DS121/AB/R, para. 7. This is according to WTO, Working Procedures, 2010 (n 52), rules 24 and 27. See WTO, Annual Report 2010, 2011 (n 38), 29.

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participate in the dispute settlement mechanisms demonstrates confidence in it. Thus, the legitimacy of the system increases when it is actually used by WTO members. Having said this, third-party rights are limited: they are entitled to receive the written submissions available up to the first panel meeting, submit their own submissions, participate in the first panel meeting (and thus also receive the oral statements in written form),63 but they cannot participate in the remainder of the first meeting with the panel nor in the second panel meeting. By the same token, they are generally not entitled to receive rebuttals64 and have no access to the interim review stage. Nevertheless, third parties can seek so-called ‘enhanced third-party rights’. This would mean that they have access to all panel meetings and obtain the rebuttals.65 The Appellate Body found that panels have a broad, discretionary authority as to whether such participatory rights should be granted to ensure due process for all parties involved.66 Furthermore, third parties cannot appeal a panel report. Having said this, third parties can still make written submissions and ask to be heard by the Appellate Body according to article 17(4) DSU. At the Appellate Body stage, third parties are allowed to make and receive submissions and statements and be present at the oral hearing. Several panels have applied specific rules to protect confidential business information, particularly in trade remedy cases. Surely, if members have no assurance that the panel is able to protect the information they submit to the panel and they consider it as strictly confidential, they will not have any incentive to produce such information in the first place. Recent leakages of panel reports, including information that the parties have regarded as strictly confidential, jeopardize the viability of the 63

64

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66

At the panel stage, third parties meet with the panel in a separate session at the first substantive meeting. See DSU, 1994 (n 33), appendix 3, para. 6. Unless rebuttals were filed in advance of the first meeting. See WTO, United States – Tax Treatment for ‘Foreign Sales Corporations’: Recourse to Article 21.5 of the DSU by the European Communities, Report of the Appellate Body of 14 January 2002, WT/DS108/ AB/RW, para. 245. See, for instance, WTO, European Communities – Regime for the Importation, Sale and Distribution of Bananas, Report of the Panel of 22 May 1997, WT/DS27/R/USA, paras. 7.4 and 7.8; and WTO, European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries, Report of the Panel of 1 December 2003, WT/ DS246/R, annex A. WTO, European Communities – EC Measures Concerning Meat and Meat Products (Hormones), Report of the Appellate Body of 16 January 1998, WT/DS26/AB/R, WT/ DS48/AB/R, para. 154; and WTO, United States – Anti-dumping Act of 1916, Report of the Appellate Body of 28 August 2000, WT/DS136/AB/R, WT/DS162/AB/R, para. 150.

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dispute settlement system.67 Initially, the Appellate Body has been unwilling to accommodate the sensitivities of business confidential information that parties to the dispute may have. For instance, in Canada – Aircraft, the Appellate Body refused to apply confidentiality procedures similar to those adopted by the panel.68 More recently, the Appellate Body demonstrated its readiness to adopt additional procedures to protect sensitive business information disclosure of which may give rise to potential harm, if circumstances so require.69 The current ad hoc nature of rules relating to business confidential information is unsatisfactory, taking into account the interest of panels in receiving from the parties the information that they seek.70 The problem becomes particularly acute because the panel, under certain circumstances, is allowed to draw inferences from a party’s refusal to submit the requested information.71 Arguably, the most recent additional procedures developed by the Appellate Body in the recent Large Civil Aircraft disputes can constitute a useful basis for the creation of a stable set of procedures protecting sensitive business information.72 Decisions by the Appellate Body and its divisions are taken by consensus. If this is impossible, matters are decided by a majority vote. Expression of individual opinion by a given panellist or Appellate Body member is allowed. Pursuant to articles 14(3) and 17(11) DSU, however, dissenting opinions are anonymous and rather rare in the history of the DSU, unlike what is known from other international courts.73 There are several reasons for this: for instance, the tight 67

68

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70 71

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73

Cf. WTO, European Communities – Measures Affecting the Approval and Marketing of Biotech Products, Reports of the Panel of 29 September 2006, WT/DS291/R, WT/DS292/ R, WT/DS293/R. WTO, Canada – Measures Affecting the Export of Civilian Aircraft, Report of the Appellate Body of 2 August 1999, WT/DS70/AB/R, paras. 141–147. WTO, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, Report of the Appellate Body of 18 May 2011, WT/DS316/AB/R, Annex III. See also Grando, Evidence 2009 (n 50), 276. See WTO, United States – Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities, Report of the Appellate Body of 22 December 2000, WT/DS166/AB/R, paras. 171–175. Cf. WTO, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), Report of the Appellate Body of 12 March 2012, WT/DS353/AB/R, annexes III and IV. See, for instance, WTO, United States – Subsidies on Upland Cotton, Report of the Appellate Body of 3 March 2005, WT/DS267/AB/R; also James Flett, ‘Collective Intelligence and the Possibility of Dissent: Anonymous Individual Opinions in WTO

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deadlines that the panels and particularly the Appellate Body must meet are an important discouraging factor. It was also argued that dissent was actively discouraged in the dispute settlement system.74 Besides, it was submitted that several of the fourteen individual – not necessarily dissenting – opinions75 as of January 2010 could have been avoided.76 Whereas the WTO dispute settlement proceedings remain largely confidential, significant steps have been made towards more effective access to the documents relating to a dispute. Surely, for some members it may be easier (both in terms of financial or electronic means and internal constitutional structures) to disclose to the public their submissions to the WTO panels and the Appellate Body. Currently, various developed countries, including the US and the EU, upload their respective submissions and oral statements on the websites of the relevant public authorities (United States Trade Representative (USTR) and Directorate-General Trade (DG Trade) respectively). Recall that, while confidential, all parties to a dispute are allowed to disclose their own submissions and statements to the public, according to article 18(2) DSU. With the acceptance of public hearings by panels and the Appellate Body upon request by the parties (discussed below), the confidentiality requirement came back on the table of the DSU review negotiations in the Doha Round. In accepting public observation of the hearing in US – Continued Suspension (Hormones), the Appellate Body accentuated the relative and time-bound character of the confidentiality requirement in the DSU.77

3.2.2 Due Process Due process is a broad concept relating to transparency which forms an essential feature of a rule-based system of adjudication such as the DSU ensuring fairness and equal treatment of the parties, but also, more

74

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76 77

Jurisprudence’, Journal of International Economic Law 13 (2010), 287–320, 310. On the other hand, there is no possibility for dissenting opinions in the Court of Justice of the European Union. Dissenting opinions can appear in Panel reports as well. See, for instance, WTO, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, Report of the Panel of 15 September 2011, WT/DS381/ R, paras. 7.146–7.188. Cf. Meredith Kolsky Lewis, ‘Dissent as Dialectic: Horizontal and Vertical Disagreement in WTO Dispute Settlement’, Stanford Journal of International Law 48 (2012), 1–46. Five of the fourteen opinions were expressed in cases relating to zeroing, the US’s notorious practice of calculating dumping margin. Flett, ‘Collective Intelligence’ 2010 (n 73). WTO, US – Continued Suspension (n 51), annex IV, para. 5.

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broadly, the legitimacy and efficacy of the dispute settlement system.78 More often than not, issues of due process are discussed under an article 11 DSU claim by the appellant, i.e. a claim on which the panel failed to make an objective assessment, particularly due to a procedural error during the panel proceedings.79 Due process forms an integral part of the dispute settlement system and is supported by a consistent body of case law relating particularly to adequate participation, impartiality and equality of treatment. The boundaries among the three areas are anything but straightforward. Participation may refer to the very element of allowing third parties to participate effectively in the proceedings (for instance, by accepting enhanced third-party rights),80 but it also relates, more fundamentally, to the granting of a meaningful opportunity to the parties concerned to comment on and respond to claims, arguments or evidence adduced by the other parties to the dispute.81 This due process obligation needs to be strictly adhered to in the panel request pursuant to article 6(2) DSU.82 More generally, the Appellate Body has often suggested that standardized working procedures for panels should emerge to provide for appropriate fact-finding at an early stage in panel proceedings and thus avoid the presentation of new facts at a late stage of the proceedings whereby parties’ right to respond (and thus their due process rights) may be negatively affected.83 In such circumstances, panels have a broad authority, as they need to balance various interests, including allowing for additional time to respond without unduly delaying the delivery of the panel report.84 Parties are also expected to assist panels in good faith in discharging their obligations by raising procedural deficiency claims at the earliest possible opportunity.85 Failure to do so may lead to a 78 79

80 81

82 84

85

See WTO, Thailand – Cigarettes (n 47), para. 147. Cf. WTO, Chile – Price Band System and Safeguard Measures Relating to Certain Agricultural Products, Report of the Appellate Body of 23 September 2002, WT/ DS207/AB/R, paras. 175–176. WTO, United States – Tax Treatment (Article 21.5 – EC) (n 64), para. 243. See, among others, WTO, United States – Measures Affecting the Cross-border Supply of Gambling and Betting Services, Report of the Appellate Body of 7 April 2005, WT/ DS285/AB/R, paras. 269–273. See WTO, US – Continued Zeroing (n 42), paras. 161–174. 83 Ibid., para. 271. Cf. WTO, Australia – Measures Affecting Importation of Salmon, Report of the Appellate Body of 20 October 1998, WT/DS18/AB/R, para. 272. WTO, United States – Imposition of Countervailing Duties on Certain Hot-rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, Report of the Appellate Body of 10 May 2000, WT/DS138/AB/R, para. 123; and WTO, Thailand – Cigarettes (Philippines) (n 47), paras. 150 and 160, fn. 255.

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rejection of the objection if raised at a later stage.86 By the same token, such an objection will be denied if no prejudice was suffered by the other parties as a result of this procedural deficiency.87 Objections relating to fundamental issues such as jurisdiction can be raised at any time.88 Impartiality notably relates to the procedural guarantees regarding the independence (this includes ensuring the lack of conflict of interest) of the adjudicators, the experts and other parties involved (for instance, the Appellate Body secretariat lawyers). These guarantees can be found in the working procedures and the rules of conduct adopted in the two judicial instances. As noted earlier, issues of impartiality not tackled adequately by the panel (e.g. disclosure of conflict of interest) may lead to a ruling by the Appellate Body that the panel failed to meet its obligations under article 11 DSU. Equality is closely related to impartiality. It requires that the parties be treated in the same manner; for instance, be given the opportunity to participate in the fact discovery on an equal footing or that both are not allowed to communicate ex parte with the adjudicating bodies. Unfair disadvantages go against the tenets of due process.89 Similar considerations apply to the right to respond and be heard. However, the DSU includes special and differential treatment provisions for developing countries, e.g. in terms of certain deadlines. Due process considerations also inform the obligation of panels to set out the basic rationale behind their findings in the panel report pursuant to article 12(7) DSU. The Appellate Body stressed that this provision reflects and conforms to the principles of fundamental fairness and due process that underlie and inform the DSU. Disclosing this basic rationale allows member States to understand the nature and scope of the WTO rights and obligations. Additionally, it is highly informative as to what must be done to bring domestic measures into conformity, or alternatively what can be subject to appellate proceedings.90

3.2.3 Judicial Law-making? Amicus Curiae and Private Counsel The Appellate Body has routinely been involved in a gap-filling exercise which can be described as expansive judicial law-making91 86 87 88 89 90 91

Cf. WTO, Mexico – Corn Syrup (Art. 21.5 – US) (n 36), para. 50. WTO, EC – Hormones (n 66), para. 152, fn. 138. WTO, US – Carbon Steel (n 85), para. 123. WTO, US – Continued Suspension (Hormones) (n 51), para. 433. WTO, Mexico – Corn Syrup (Article 21.5 – US) (n 36), para. 107. Cf. Richard Steinberg, ‘Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints’, American Journal of International Law 98 (2004), 247–275.

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or judicial activism.92 Without any remand authority, one of the most controversial actions that the Appellate Body has engaged with was the ‘completion’ of the panel’s analysis.93 For the Appellate Body to complete the analysis, the complainant must convince the Appellate Body that there are sufficient uncontested facts on the panel’s record.94 Another issue that drew criticism against the Appellate Body has been the treatment of unsolicited letters in the form of amicus curiae briefs submitted by parties not participating in the dispute, most notably NGOs, but also trade associations and individuals. In US – Shrimp,95 against all odds, the Appellate Body had found that panels are entitled to accept information from any source, irrespective of whether it is solicited or not, pursuant to article 13 DSU. Members’ reaction was not in favour of such opening towards the outside world.96 Criticism grew as the Appellate Body went a step further in EC – Asbestos,97 by adopting case-specific additional procedures to deal with amicus curiae briefs in the dispute. For the record, the Appellate Body has never explicitly stated that it found useful any of the amicus curiae briefs that it has received over the years.98 Another issue whereby the Appellate Body deviated from longstanding GATT history relates to the involvement of private counsel in the dispute settlement system. In EC – Bananas III,99 the Appellate Body reversed the Panel’s finding that the presence of private counsels breaches the confidentiality requirement. In this regard, the Korea – Alcohol Panel found that it is for each member to ensure that its advisors abide by the duty of confidentiality, a ruling later confirmed by the 92

93

94

95 96

97

98

99

Cf. William Davey, ‘The Limits of Judicial Processes’, in Daniel Bethlehem et al. (eds.), Oxford Handbook 2009 (n 2), 461–478, 473. Also Alan Yanovich/Tania Voon, ‘Completing the Analysis in WTO Appeals: The Practice and its Limitations’, Journal of International Economic Law 9 (2006), 933–950. WTO, United States – Investigation of the International Trade Commission in Softwood Lumber from Canada: Recourse to Article 21.5 of the DSU by Canada, Report of the Appellate Body of 13 April 2006, WT/DS277/AB/RW, para. 157. WTO, US – Shrimp (n 35), para. 104; also WTO, US – Carbon Steel (n 85), para. 39. WTO, DSB, Minutes of Meeting Held on 6 November 1998, WT/DSB/M/50, 14 December 1998. WTO, European Communities – Measures Affecting Asbestos and Asbestos-containing Products, Report of the Appellate Body of 12 March 2001, WT/DS135/AB/R, paras. 51–52. See, more recently, WTO, United States – Definitive Anti-dumping and Countervailing Duties on Certain Products from China, Report of the Appellate Body of 11 March 2011, WT/DS379/AB/R, para. 18. WTO, EC – Bananas (n 65), para. 10.

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Appellate Body.100 More recently, it was found that joint representation of two parties to a dispute (one of them being a third party) by the Advisory Centre on WTO Law is possible as long as it can be ensured that conflicts of interest are avoided.101 Private counsels can be decisive for increasing developing countries’ participation in the dispute settlement system. Arguably, the shift away from the established GATT practice of only permitting submissions by government officials and trade experts has enhanced transparency of the dispute settlement system, as it has broadened the circle of experts involved in the system. Furthermore, it has led to a more constructive discussion about improving the dispute settlement system,102 accentuated legal formalism and resulted in more rigorous adherence to procedural rules in the proceedings. However, conflict of interest remains an issue, notably in trade remedy cases where important business confidential information is disclosed to the parties. The Appellate Body clarified early on that the parties must bear full responsibility for the acts of any official, counsel or consultant who participates in the proceedings on their behalf.103

3.3

Selected Issues Regarding External Transparency

3.3.1 Public Hearings In principle, panel meetings are not open to the public or to WTO members other than third parties. Nonetheless, on request of the parties, panels can open their hearings to the public. The first panel meeting where public observation occurred through closed-circuit television broadcast in a separate room was in the US – Continued Suspension (Hormones) and Canada – Continued Suspension (Hormones) cases.104 In EC – Bananas III (21(5) DSU), the public was allowed in the meeting room. Since 2005, over one quarter of panels have opted for open hearings.105 The first Appellate 100 101 102 103

104

105

WTO, Canada – Aircraft (n 68), 141. WTO, European Communities – Tariff Preferences (n 65), paras. 7.9–7.13. Cf. WTO, Canada – Aircraft (n 68), para. 145. Cf. WTO, Thailand – Anti-dumping Duties on Angles, Shapes and Sections of Iron or Non-alloy Steel and H-beams from Poland, Report of the Appellate Body of 12 March 2001, WT/DS122/AB/R, para. 68. See ‘First Public WTO Dispute Settlement Hearing Under Way’, Bridges Weekly Trade News Digest 9(30) (2005). See Lothar Ehring, ‘Public Access to Dispute Settlement Hearings in the World Trade Organization’, Journal of International Economic Law 11 (2008), 1021–1034, 1026.

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Body public hearing took also place in Continued Suspension (Hormones) on the request of the parties to the dispute. Brazil, China, India and Mexico (acting as third participants) raised the question of the permissibility of such an action. Contrary to article 14(1) DSU, which seems to allow for the opening of the panel hearing, article 17(10) DSU states that Appellate Body proceedings should be confidential. Indeed, while the former provision requires confidentiality of the panel deliberation, the latter provision imposes confidentiality of the Appellate Body proceedings. In Canada – Aircraft,106 the Appellate Body had found that the term ‘proceedings’ is broader than the term ‘deliberations’, as the former includes not only the Appellate Body internal work but also the oral hearing. Thus, proceedings outside deliberations can be opened. In the end, the Appellate Body issued a procedural ruling in favour of the parties’ request. The Appellate Body referred to rule 27 of its Working Procedures to support its view that lifting the confidentiality of its proceedings comes ultimately within the authority of the Appellate Body relating to the conduct and organization of the oral hearing. The oral statements made by Brazil, China, India and Mexico were not broadcast. Contrary to the observation of those countries that this was an issue that needed to be decided by all WTO members and was currently under negotiation, the Appellate Body found that it is a procedural question that can be tackled through the adoption of ad hoc additional procedures pursuant to rule 16(1) of the Working Procedures, as long as it does not impair the integrity of the appellate process nor affect the confidentiality of the relationship between the third participants and the Appellate Body. Indeed, other than protecting business confidential information, there are hardly any compelling reasons for restricting open hearings.107 Additionally, even in case of highly sensitive information disclosed during the hearing, the WTO adjudicating bodies can still opt for solutions that respect such concerns while at the same time serving the systemic importance of transparency. For instance, in EC and Certain Member States – Large Civil Aircraft, the Appellate Body decided to open to public observation the opening

106 107

AB Report, Canada – Aircraft (n 68), para. 143. Cf. Sutherland et al., Sutherland Report 2004 (n 1), 58. For some proposed changes in the DSU in this direction, see WTO, Dispute Settlement Body (Special Session), Further Contribution of the United States to the Improvement of the Dispute Settlement Understanding of the WTO Related to Transparency – Revised Legal Drafting: Communication from the United States, TN/DS/W/86, 21 April 2006.

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statements and – subject to contrary advice by the participants – the closing statements, while the sessions open to public observation were videotaped and broadcast after sensitive information was removed at the request of participants.108

3.3.2 Public Relations of the WTO Adjudicating Bodies The Appellate Body issued its first annual report in May 2004.109 The annual reports of the Appellate Body include valuable information on the appeals before the Appellate Body in a given year and valuable statistics on dispute settlement. In its 15 years of existence, the Appellate Body has issued over 101 reports on disputes. In comparison, the International Court of Justice has delivered sixty-one judgments and twenty-three advisory opinions in its more than sixty-year existence. There is no annual report for the activities of panels. This makes sense since there is no standing panel mechanism.110 Information about the dispute settlement cases in general is updated by the WTO Legal Affairs Division and circulated under the responsibility of the Secretariat. This document is very detailed; it contains information about the stage of each case filed at the WTO and succinctly describes the content of each WTO dispute.111 4. Change of Dynamics in the WTO – Participation, Due Process and Outreach The use of the term ‘transparency’ in the WTO has been less normative than in public policy discourse, where transparency refers to the fairness and openness of a given regime.112 At the WTO institutional level, transparency became an agenda issue in the late 1990s, in the wake of controversial rulings and ill-prepared Ministerial Conferences. While admittedly successful, the trade regime has fulfilled its mission of liberalizing trade in the shadow of organized opposition.113 After the 108 109 110

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See WTO, Large Civil Aircraft (n 69), annex IV. See WTO, Appellate Body Annual Report for 2003, WT/AB/1, 7 May 2004. Cf. the Journal of International Economic Law mini-symposium and the contributions thereto in the Journal of International Economic Law 6 (2003), 175–250. The most recent document is WTO, Update of WTO Dispute Settlement Cases, WT/ DS/OV/34, 26 January 2009. Cf. WTO, Working Group on the Relationship between Trade and Investment, Transparency: Note by the Secretariat, WT/WGTI/W/109, 27 March 2002, 3. Cf. Judith Goldstein/Lisa Martin, ‘Legalization, Trade Liberalization, and Domestic Politics: A Cautionary Note’, International Organization 54 (2000), 603–632, 614.

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Ministerial Conference in Seattle, the signs were clearly alluding to the need for more internal transparency as a precondition for any advancement in the WTO. The Doha Declaration acknowledged the transparency challenge, first, by recognizing that internal (input) transparency in the WTO remains unsatisfactory and must be addressed in view of the expanded membership, and, second, that effective participation of all members is indispensable.114 Transparency is clearly no zero-sum game. At the internal level of the WTO, transparency implies more chances for effective participation and deliberation. Improving the external transparency of the WTO as an organization means improving communication with and participatory rights for the broader public.

4.1

Internal Transparency

Just like other international organizations, the WTO entails important agency costs which may accentuate its ‘democratic deficit’. More often than not, package deals are presented to the domestic legislatures of members for ex post acceptance.115 At the institutional level, agency costs can be addressed through increased transparency in negotiations and other discussions, as well as more intensive participation. At the internal level, in reality, the fact remains that effective participation is closely associated with longer negotiations and higher transaction costs. If deliberative processes are thereby served, this is rather good news for the proponents of open global institutions; however, it negatively affects the WTO institutional performance and ready delivery of results, notably because the WTO lacks deal-brokering processes.116 The current Doha impasse has resulted in an increase of voices calling for reform of the WTO procedures. Such dissatisfaction may originate not only in developing countries, which were disappointed with the welfare

114

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116

See WTO, Ministerial Conference, Ministerial Declaration, adopted on 14 November 2001, WT/MIN(01)/DEC/1, 20 November 2001, paras. 10 and 49. See Robert Howse, ‘How to Begin to Think about the “Democratic Deficit” at the WTO’, in Stefan Griller (ed.), International Economic Governance and Non-economic Concerns – New Challenges for the International Legal Order, European Community Studies Association of Austria (ECSA Austria) Publication Series 5 (Wien: Springer, 2003), 79–101. Cf. Yves Bonzon et al., ‘Reflections on Modes of Decision-making in the World Trade Organization’, in Thomas Cottier/Panagiotis Delimatsis (eds.), The Prospects of International Trade Regulation – From Fragmentation to Coherence (Cambridge University Press, 2011), 103–135, 110.

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repercussions of the Uruguay Round, but also from developed countries,117 which are displeased with the slow pace and burdensome decision-making process and, occasionally, with the far-reaching rulings of the WTO judicial mechanism. In the meantime, proliferation of preferential trade agreements continues growing apace. The current state of WTO affairs has witnessed higher levels of participation by developing countries – not only the emerging economies, but also least-developed countries, individually or as a group. This is a welcome incremental transformation of the WTO. A comparative institutional perspective of the international legal landscape leads to the conclusion that the WTO is one of the most highly legalized international institutions.118 Legalization means, among other things, to develop relatively more precise rules and obligations, and consequently, more transparency as to what needs to be adhered to. This is one of the features that relatively few international organizations currently display. Additionally, the WTO has developed a fairly detailed body of case law relating to procedural rights within the dispute settlement system and the protection of due process, taking into account at the same time the inter-State nature of the proceedings. Rulings like the one in US – Gambling constitute a case in point whereby the Appellate Body had to strike a balance between protecting the due process rights of the parties while allowing the responding party to raise a defence fairly late in the proceedings.119 Ongoing support by democratic States constitutes the democratic channel of accountability. The smooth functioning of this channel is generally necessary for the legitimacy of the organization.120 However, State consent is a necessary but not sufficient condition for confirming the legitimacy of international organizations. The consensus rule, with its imperfections, can improve transparency with regard to the preferences of the weaker WTO members, which the more powerful members must take into account when designing the final deal or the final draft text to be submitted for members’ consideration, to avoid deal-breakers. Consensus also implies that the more active WTO members will be 117

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Cf. Michael Finger/Philip Schuler, ‘Implementation of the Uruguay Round Commitments: The Development Challenge’, World Bank Policy Research Working Paper No. 2215 (1999). Kenneth Abbott at al., ‘The Concept of Legalization’, International Organization 54 (2000), 401–419, 405. Compare WTO, US – Gambling (n 81), paras. 270–276. Buchanan/Keohane, ‘Legitimacy’ 2006 (n 6), 405.

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testing the intentions and preferences of the other members, notably the weaker and thus more defensive ones, by tabling proposals or informal documents (so-called room documents) early in the decision-making process. Such preferences may be expressed individually or through representatives of coalitions such as the G-20, the G-33 or the group of least developed countries. This is one of the most compelling justifications for the current delay in concluding the Doha Round within an international organization that totals over 150 members. Instead, the adequacy of weighted, majority-based voting as a mechanism that would improve the efficiency of the WTO still needs to be proven.121 Demands for openness and participation could not be satisfied with the old GATT mechanism. WTO critics argue that the WTO is deficient on grounds of both the procedural fairness of its mechanisms and the substantive fairness of its decisions.122 Decision-making within the WTO has many facets and thus the level of transparency may vary in an uneven manner. When compared to an actual negotiating round, transparency may play a much more decisive role in the everyday work of the WTO committees. A case at issue is procedures within the Committee on Sanitary and Phytosanitary Measures.123 Regarding procedural transparency in decision-making, one could envisage introducing the possibility of review of WTO decisions by the WTO adjudicating bodies.124 Due to the fact that the WTO is an intergovernmental organization, there is currently no such possibility for judicial review. Such a mechanism would enhance the overall institutional cohesion of the WTO and would add a layer of adequate review to ensure some tentative mechanism of checks and balances. This type of constitutional-like claim would be adequate to reassure members and constituencies of the procedural rigour of the WTO. The WTO adjudicating bodies are already familiar with the transparency and good governance discourse through the interpretation of the WTO transparency

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See Thomas Cottier/Satoko Takenoshita, ‘The Balance of Power in WTO Decisionmaking: Towards Weighted Voting in Legislative Response’, Aussenwirtschaft 2 (2003), 171–214. Claims concerning lack of substantive fairness relate to the WTO dispute settlement mechanism. See also Andrew Lang/Joanne Scott, ‘The Hidden World of WTO Governance’, European Journal of International Law 20 (2009), 575–614, 590. Cf. Klaus Armingeon et al., ‘The Constitutionalisation of International Trade Law’, in Cottier/Delimatsis (eds.), Prospects of International Trade Regulation 2011 (n 116), 69–102, 80.

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provisions such as article X GATT.125 Another proposal that aims at enhancing input legitimacy is that of creating a Consultative Parliamentary Assembly, composed of parliamentarians of WTO members.126 Nevertheless, when analysing any proposals relating to increased transparency in the WTO, scholars and members should not lose sight of the fact that no ideal legal order at the domestic or international level exists.127

4.2

External Transparency

One inherent challenge the WTO organs and members face is walking the tightrope between functioning according to contemporary governance principles and at the same time facilitating successful negotiations, with all the secrecy, discretion and confidentiality that this may require.128 More transparency brings with it more interest in the activities of the WTO and thus more interest in influencing those activities.129 Enhanced transparency brings about mobilization of a variety of groups.130 In that sense, openness in the WTO decision-making is an irreversible process. This means that it should only be the result of a wellthought-out and determined action by WTO members – in cooperation with the secretariat as far as the technicalities are concerned. The attribution of observer status to NGOs has been a first step. Loosening the standards for participation of NGOs in the WTO decision-making and dispute settlement system would also allow overcoming some public choice concerns present in any political institution

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Cf. WTO, US – Shrimp (n 35), paras. 180–183; and WTO, European Communities – Selected Customs Matters, Report of the Appellate Body of 13 November 2006, WT/ DS315/AB/R, para. 302. Meinhard Hilf, ‘How Can Parliamentary Participation in WTO Rule-making and Democratic Control Be Made More Effective? The European Context’, in ErnstUlrich Petersmann (ed.), Reforming the World Trading System – Legitimacy, Efficiency, and Democratic Governance (Oxford University Press, 2005), 413–420, 413. Andrew Moravcsik, ‘Is There a “Democratic Deficit” in World Politics? A Framework for Analysis’, Government and Opposition 39 (2004), 336–363, 336. Cf. Julio Lacarte, ‘Transparency, Public Debate, and Participation by NGOs in the WTO: A WTO Perspective’, in Petersmann (ed.), Reforming the World Trading System 2005 (n 126), 447–451 Cf. Daniel Esty, ‘Good Governance at the World Trade Organization: Building a Foundation of Administrative Law’, Journal of International Economic Law 10 (2007), 509–527, 526. Goldstein/Martin, ‘Legalization’ 2000 (n 113), 608.

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such as the WTO.131 By involving the NGOs more in its work along functional lines, the WTO and its members receive valuable support, which can enhance the WTO’s legitimacy, authority and effectiveness.132 Clearly, the red line is attributing to the NGOs something more than an observer status.133 NGOs’ support is all the more important if one considers the rather limited financial resources of the WTO and the relatively small WTO Secretariat. Bringing this collaboration up to a more sophisticated level would also enhance WTO’s deliberative legitimacy.134 Critically, it seems that not only NGOs, but also unorganized, ordinary people do worry about and even mistrust the WTO, as exemplified by the demonstrations during ministerial conferences or other high-level meetings at the WTO. This constitutes a possible source of concern, as what is conventionally termed ‘global civil society’ has been confounded with NGOs for years. Arguably, these people do not feel that they are represented by any State official or by any NGO. If this is indeed the case, openness, that is, open-door bargaining, decision-making and dispute settlement, may be the only possible and sustainable modus operandi for the WTO if the organization wants to gain public support.135 Public hearings of disputes are now reality and additional initiatives in this direction such as the WTO Public Forum or the WTO Open Doors Initiative can only be praised.136 The same holds true for live webcasting or press releases where non-technical language is used. Indeed, what is sought is not transparency in the form of increased communication of technical documents, which few outside the WTO are able to assess and act upon.137

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Cf. James Buchanan/Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy (Ann Arbor: University of Michigan Press, 1962). See Daniel Esty, ‘Linkages and Governance: NGOs at the World Trade Organization’, University of Pennsylvania Journal of International Economic Law 19 (1998), 709–730, 716. Cf. Steve Charnovitz, ‘The WTO and Cosmopolitics’, in Petersmann (ed.), Reforming the World Trading System 2005 (n 126), 438–445, 444. Cf. Jürgen Habermas, The Theory of Communicative Action: Reason and the Rationalization of Society (Boston, Mass.: Beacon Press, 1981), 286–287. Cf. David Stasavage, ‘Transparency in Domestic and International Bargaining’, International Organization 58 (2004), 667–703, 680. See WTO, ‘Community/Forums’, available at: www.wto.org. Cf. Andrew Kuper, Democracy Beyond Borders – Justice and Representation in Global Institutions (Oxford University Press, 2004), 180.

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5. Future Prospects The future of the WTO is not at stake. Admittedly, the WTO has managed to fulfil the tasks that States and scholars expected, notably reducing transaction costs; increasing access to information; providing for an independent forum for managing international commerce; mediating disputes and enforcing sanctions.138 By promoting cooperation among democratically elected (for the most part) politicians and their governments, the WTO empowers them. This is yet another element that enhances the legitimacy of a global institution. As Robert O. Keohane et al. correctly observe, the choice is not between international cooperation and domestic autonomy, but rather between complementary activities of institutions at the international and domestic levels, on one side, and uncoordinated State action, on the other.139 As regards, more specifically, the issue of transparency, the institutionalization of the multilateral trading system and the increased ruleorientation of the dispute settlement system has fostered legalization and, with it, enhanced transparency. At the same time, higher levels of power diffusion have resulted in pressing demands for more transparency. Although transparency may have a negative impact on the negotiation and conclusion of deals at the multilateral level by increasing transaction costs (negotiating costs or other costs), it can bring about better and more accurate information regarding the distributional effects of the proposed agreements, thereby mobilizing groups that may be hurt by more liberalization.140 At the same time, transparency may be affected by the imbalance between the judicial branch and the other WTO branches. With the benefit of hindsight, the asymmetry between the powerful compulsory adjudication system, on the one hand, and the relative weak treatymaking and treaty-modifying functions of the WTO legislative, on the other hand, renders the upgrading of the WTO legislative functions quite compelling. The discussion about WTO reform should naturally revolve around matters relating to institutional decision-making. Additional 138

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Cf. Kenneth Abbott/Duncan Snidal, ‘Why States Act through Formal International Organizations’, Journal of International Conflict Resolution 42 (1998), 3–32; also Jose´ Alvarez, International Organizations as Law-makers (Oxford University Press, 2005), 338–365. See Robert O. Keohane/Stephen Macedo/Andrew Moravcsik, ‘Democracy-enhancing Multilateralism’, International Organization 63 (2009), 1–31, 23. Cf. Goldstein/Martin, ‘Legalization’ 2000 (n 113), 619.

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efforts should be made to convince member States, within a transformed WTO, that transparency of governance and rule of law at all stages of the WTO’s activities are in the WTO’s interest. Generally, the WTO has an interest in more transparency to avoid biased communication of documents by NGOs or States that want to delay progress or advance their own interests. Currently, many documents which are ostensibly restricted (e.g. JOB documents or room documents, which members or the secretariat circulate during meetings) are available on various websites only hours after their first circulation in a WTO meeting. Given these improvements at the level of transparency, it is hardly surprising that NGOs have become more and more interested in increased participatory rights and less so in gaining access to information, as the latter is nowadays fairly easy for them. Externally, more active involvement of the WTO in the ongoing reflection about the new financial architecture under the aegis of the G-20 can also lead to a higher degree of transparency. The WTO participates in these proceedings and periodically informs the G-20 of current trade policies and possibly protectionist measures that have been adopted. Exposure and openness are likely to increase the potential for external scrutiny by civil society and other stakeholders. It would be simplistic, however, to look at issues of transparency in isolation from other, equally pressing issues that the WTO has to tackle. Recent decades have seen an increasing integration of the developing world in the global trading system. Such integration has, however, been highly unequal, with some countries benefiting more than others.141 The adoption of redistribution mechanisms and the participation of domestic constituents in the deliberation process of the WTO can only be beneficial. Such initiatives do not necessarily entail direct money transfers from the WTO to specific groups or countries. Indeed, the WTO is not a development agency, nor does it have the financial capacity to act in this manner.142 With an annual budget of about USD 80 million, much of the WTO’s activities depend on the goodwill of its members to maintain and expand the activities of the organization.143 An extensive part of the WTO’s literature has focused on the constitutionalization of 141

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But see Judith Goldstein/Douglas Rivers/Michael Tomz, ‘Institutions in International Relations: Understanding the Effects of the GATT and the WTO on World Trade’, International Organization 61 (2007), 37–67, 57. Cf. Sutherland et al., Sutherland Report 2004 (n 1), 61. Cf. James Bacchus, ‘A Few Thoughts on Legitimacy, Democracy, and the WTO’, in Petersmann (ed.), Reforming the World Trading System 2005 (n 126), 429–435, 430.

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the institution. However, a constitution without distributional effects cannot be conceived. Global distribution of benefits is perhaps addressed for the first time through the Cotton initiative, involving four cottonproducing countries, Benin, Burkina-Faso, Chad and Mali, but the final deal is yet to be concluded.144 One of the most serious errors in the architecture of the global trading system that emerged from the Uruguay Round was the adoption of transitional periods during which developing countries and least developed countries were exempted from the application of certain rules. This has arguably led to an undesirable phenomenon, that is, the alienation of several members vis-à-vis the key WTO objective of achieving liberalization and restructuring the domestic market. With respect to decisionmaking in particular, these members have lost interest in shaping the rules, as they felt that they were not involved. Thus, participation and inclusiveness and, consequently, legitimacy of decisions taken at the WTO were severely affected. In addition, rather than shrinking the gap among the developed and the developing world, such special treatment provisions have arguably had the opposite effect. To fully integrate these countries in a more transparent system seems to be the main challenge for the WTO in the upcoming years. 144

See WTO, ‘The Cotton Sub-committee’, available at: www.wto.org.

6 Transparency in International Investment Law: The Good, the Bad and the Murky julie a. maupin*

1. Introduction Transparency is the buzzword du jour within international investment law. Oft invoked and seldom defined,1 it slides like butter on toast across the debates, saturating nearly every facet of the international legal regime governing foreign direct investment. How can we improve the content of investment treaties? Introduce more transparency into the negotiating process.2 What can be done to reduce the mounting public criticism of investor–State arbitration? Make the investor–State dispute resolution process and the institutions that support it more transparent.3 Of course, few would deny that transparency is generally a good thing. It is necessary to the functioning of any democratic means of organizing our cooperative relations, whether social or economic, domestic or international.4 But transparency is not a panacea. As in all things, * For helpful comments, I thank the book editors, participants in the ‘Transparency in International Law’ workshop (Thun, Switzerland, January 2012), and participants in the Duke–UNC Junior Faculty Forum. Thanks also to Guy Charles and Pierre-Marie Dupuy. 1 A notable exception is Carl-Sebastian Zoellner, ‘Transparency: An Analysis of an Evolving Fundamental Principle in International Economic Law’, Michigan Journal of International Law 27 (2005–2006), 579–628, 580–581 (identifying three notions of transparency commonly evoked in international economic law). 2 See the discussion in section 3.1 below. 3 See e.g. James Harrison, ‘Recent Developments to Promote Transparency and Public Participation in Investment Treaty Arbitration’, 12 January 2011, available at: http://ssrn. com; Jason W. Yackee/Jarrod Wong, ‘The 2006 Procedural and Transparency-related Amendments to the ICSID Arbitration Rules: Model Intentions, Moderate Proposals, and Modest Returns’, in Karl P. Sauvant (ed.), The Yearbook on International Investment Law and Policy (Oxford University Press, 2010), ch. 6. 4 Variations on this theme have been recognized not only by important Western thinkers – including Immanual Kant, Jean-Jacques Rousseau, Adam Smith, Jeremy Bentham, David Hume, Michel Foucault, and their more contemporary progeny – but also by classical

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context matters. We must ask ourselves not only whether transparency is desirable within international investment law, but also transparency in respect of what and vis-à-vis whom? Only in light of the answers to these questions can we begin to fulfil the present volume’s mandate of querying the degree to which the international investment regime may manifest an existing or evolving international law norm of transparency. I approach the task in four sections. I begin by considering how the complex and decentralized nature of the international investment law system complicates the quest for transparency from the outset by both proliferating and obfuscating the lines of communication through which information flows. I then adopt a rough working definition of transparency that is appropriate to this multifarious environment, emphasizing the availability, accessibility, usability and relevance of the information for all affected stakeholders. In section 3, I construct a framework for evaluating the status of the posited transparency norm within the international investment law system. This framework identifies transparent, semi-transparent and non-transparent aspects of the system and examines the major types of information falling within each category. I demonstrate that these do not necessarily map onto prevailing normative judgments concerning what might constitute good, bad and murky transparency practices. Section 4 sketches a few strategies that might be explored in future prescriptive analyses of transparency questions. Section 5 concludes with a tentative assessment of the penetration, recent evolution, and likely trajectory of transparency principles within the contemporary international investment law regime.

2. What Does It Mean to Examine Transparency in International Investment Law? Before broaching the topic of transparency, it is first necessary to specify the domain of inquiry. What precisely is the international investment law ‘system’ or ‘regime’? There is no simple answer to this question. In contradistinction to other international legal regimes – such as those associated with the World Trade Organization (WTO), International Labour Organization, or United Nations – international investment law has no hierarchy, no central organizing body, and no historical genesis scholars in the Confucian and Greek traditions. See Christopher Hood, ‘Transparency in Historical Perspective’, in Christopher Hood/David Heald (eds.), Transparency: The Key to Better Governance?, Proceedings of the British Academy 135 (Oxford University Press, 2006).

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or originating document commonly acknowledged by all. It is clearly not a ‘regime’ in the strict constitutional sense. Rather, as I have argued elsewhere,5 the only practicable way to identify international investment law is by its constituent elements: (1) Textually, the regime is a ‘spaghetti bowl’ of around 3,000 overlapping bilateral and regional treaties,6 tens of thousands of transnational contracts, and an unknown number of domestic statutes7 whose purported aim is to stimulate economic development by attracting and protecting foreign investments within the sovereign territories of individual host States.8 (2) Substantively, it is a half-dozen or so vaguely worded but relatively standardized legal principles constraining the permissible actions of sovereign governments in their dealings with foreign investors.9 (3) Institutionally, it is a handful of competing arbitration-related institutions and their associated sets of procedural rules for investor– State dispute resolution.10

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Julie A. Maupin, Reconciling Public and Private Rights and Interests in International Investment Law, PhD dissertation (forthcoming). According to the most recent United Nations Conference on Trade and Development (UNCTAD) count, ‘at the end of 2010 the IIA universe contained (. . .) 2,807 BITs [bilateral investment treaties] (. . .) and 309 “other IIAs” [international investment agreements]’, excluding double taxation treaties (which fall beyond the scope of this chapter). UNCTAD, World Investment Report 2011: Non-equity Modes of International Production and Development (New York/Geneva: United Nations Publishing, 2011), 100. I have never seen an authoritative compilation of such statutes, though many are accessible via the websites of governments’ investment promotion agencies. The vigorous debate over whether these texts actually accomplish their intended purpose rages on. See, most recently, Jason Webb Yackee, ‘Do Bilateral Investment Treaties Promote Foreign Direct Investment? Some Hints from Alternative Evidence’, Virginia Journal of International Law 51 (2011), 397–442; Todd Allee/Clint Peinhardt, ‘Contingent Credibility: The Impact of Investment Treaty Violations on Foreign Direct Investment’, International Organization 65 (2011), 401–432; Axel Berger at al., ‘More Stringent BITs, Less Ambiguous Effects on FDI? Not a BIT!’, Economics Letters 112 (2011), 270–272. These include: non-discrimination, national treatment, most-favoured nation treatment, fair and equitable treatment, the free transfer of returns, and protection against uncompensated expropriation. Some international investment texts provide further protections, but these core disciplines are common to most. Most notably the International Centre for Settlement of Investment Disputes (ICSID), the United Nations Commission on International Trade Law (UNCITRAL), the International Chamber of Commerce (ICC), the Stockholm Chamber of Commerce (SCC), the London Court of International Arbitration (LCIA) and the Permanent Court of Arbitration.

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(4) Jurisprudentially, it is an ever-growing body of decisions through which ephemeral arbitral tribunals interpret and develop the substantive law of international investment.11 To make this description more concrete, consider three hypothetical manifestations of international investment law. In scenario one, a Russian investor relies on a bilateral investment treaty (BIT) to claim compensation from the United States for enacting a new environmental law, which the investor claims has unfairly and inequitably diminished the value of their investment. The claim is heard by an international arbitral tribunal functioning under the United Nations Commission on International Trade Law (UNCITRAL) arbitration rules,12 with institutional support provided by the Permanent Court of Arbitration. The final award is enforceable under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.13 In scenario two, a Chinese investor brings a claim of uncompensated expropriation against the government of Ivory Coast pursuant to the latter’s domestically enacted investment statute. An international arbitral tribunal functioning under the auspices of the International Centre for Settlement of Investment Disputes (ICSID) hears the claim, applying the ICSID rules of arbitration. The tribunal’s final award is governed by and enforceable under the ICSID Convention.14 In scenario three, a Saudi investor brings a claim for breach of contract against the government of Vanuatu pursuant to a concession agreement between the two parties. The claim is heard by an international arbitral tribunal constituted under the auspices of the International Chamber of Commerce (ICC) and applying the ICC arbitration rules. The final award is subject to enforcement under the domestic laws of the jurisdiction(s) where enforcement is sought, as Vanuatu is not a party to an applicable international enforcement convention. In such a world, it is difficult to fathom how one might begin to trace the content and pervasiveness of any single overarching transparency norm. Simple combinatorics would suggest that an impossibly large 11

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The number of publicly available awards currently stands at around 500. These awards are available at: http://italaw.com. UNCITRAL Arbitration Rules, 15 December 1976, 15 ILM 701. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 June 1958, 330 UNTS 3. Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 18 March 1965, 575 UNTS 159.

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number of transparency norms would be required to cover all of the potential permutations of legal texts, substantive rules and institutions that might arise. By way of counterpoint, the WTO system allows for legal challenges based upon varied causes of action. But these must be State-to-State challenges, must arise under one of only sixteen treaties,15 and must be settled in accordance with a single dispute settlement mechanism, applying a single set of rules and overseen by a single administering institution. Expanding the lens to include regional and bilateral trade relations adds about 300 additional treaties to the picture16 – around one tenth the number involved in the international investment law regime – not counting the latter’s incorporation of investor–State contracts and domestic investment statutes. Yet, somehow, the centre holds. The international investment law regime indeed operates as a ‘system’ – complex and decentralized, to be sure, but neither anarchic nor disorganized.17 To understand why, one must look beyond international law’s traditional pillars of inquiry18 and give due consideration to two additional constituent elements of the international investment law regime: (5) Politically, it is a collection of actual and potential stakeholders – some individual and some corporate (including investors, States, and civil society) – who either have been or believe that they may one day be impacted in some way by the functioning of the international investment law regime. (6) Sociologically, it is a particularized epistemic community comprised of arbitrators, counsel, experts, scholars, institutional employees, journalists, treaty negotiators, government advisors, and a select few knowledgeable civil society advocates – all of whom are 15

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Those listed in the Understanding on Rules and Procedures Governing the Settlement of Disputes, 15 April 1994, 1869 UNTS 401, appendix 1: Agreements Covered by the Understanding. World Trade Organization, World Trade Report 2011: The WTO and Preferential Trade Agreements: From Co-existence to Coherence (Geneva: World Trade Organization, 2011), 55, figure B.1. This may be thanks, in part, to the centripetal force exerted by modern information technology. See Jose´ Alvarez, ‘The Democratization of the Invisible College’, 8 November 2007, available at: www.asil.org; and Stephan Schill, ‘Whither Fragmentation? On the Literature and Sociology of International Investment Law’, European Journal of International Law 22 (2011), 875–908, 886–887 (both discussing how the Oil-gas-energy-mining-infrastructure Dispute Management (OGEMID) LISTSERV and other similar electronic communication tools band together the international investment law epistemic community). I refer here to subjects, objects and sources discourse.

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connected to one another by a revolving door which facilitates frequent and facile movement between these roles.19 I have examined these elements in detail in other work.20 For present purposes, it suffices to note that the fifth and sixth elements of the international investment law system are interrelated in two important ways. First, there is a discernible overlap between some – though not all – of the actors inhabiting the political and sociological spheres. Second, actions taken within the political sphere often provoke reactions within the sociological sphere, and vice versa. The mechanism of influence differs, however. In the political sphere, the mechanism of influence is direct and overt; it occurs through the exercise of an actor’s right to influence policy decisions. In the sociological sphere, the mechanism is indirect and sometimes covert; it takes place through the actor’s ability (independent of any associated right) to influence policy developments. By way of illustration, members of a given country’s private arbitration bar may exercise domestic political power when making submissions to their own government concerning a proposed transparency-related amendment to that country’s model BIT. Some of these same individuals may in turn exercise sociological power when deciding (while acting as arbitrators, counsel, or expert witnesses) within the context of particular investor–State arbitrations how to address transparency questions arising in proceedings involving other, similarly worded treaties.21 Even these mechanical boundaries between the two realms may blur at times. Several governments have recently appointed members of their private arbitration bars to represent their States’ national interests before the ongoing intergovernmental UNCITRAL Working Group on proposed transparency-related amendments to the UNCITRAL arbitration rules.22 In such instances, it becomes unclear which mechanism – political or sociological – is actually at work. 19

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In the interest of full disclosure, I have worn different hats at various points in the past myself. Julie A. Maupin, International Investment Law’s Epistemic Community: Who It Includes and Why It Matters, Working Paper (on file with author); see also Maupin, Reconciling Public and Private Interests 2013 (n 5), chs. 1–2. E.g. does public interest in the dispute warrant disclosure of the parties’ pleadings in the case? How broad are the host State’s transparency obligations toward the investor under the treaty’s fair and equitable treatment standard? For example, the UK delegation reportedly includes prominent British arbitrators Johnny Veeder and Toby Landau alongside a British governmental official. Likewise for Switzerland, represented by a Swiss official plus private arbitrators Michael

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What is clear from this discussion, however, is that any investigation of transparency within international investment law must pay heed to the many different forms and faces it can take. It must also devote sufficient attention to the individuals and groups whose joint and separate activities are shaping the system’s trajectory. As it happens, a considerable number of practitioners, arbitrators and academics straddle the international investment and international commercial arbitration worlds. This is understandable, since both systems embrace privately initiated claims and non-judicial dispute settlement options. Yet it would be a mistake to treat the two systems alike for purposes of any transparency inquiry. Commercial arbitration principally involves contract claims whose resolution is supposed to have little impact beyond the disputing parties and their immediate affiliates.23 International investment law disputes, by contrast, often involve challenges to generally applicable regulatory measures enacted by host State governments for public purposes.24 Their resolution can therefore impact upon the public at large by limiting the scope of – or alternatively setting the price for – States’ exercise of their sovereign regulatory powers. In such circumstances it is essential to examine the regime’s transparency norms not only in view of its multiplicity of texts and institutions but also in light of the interests of the broad spectrum of stakeholders – including the general public – who may be directly or indirectly affected by certain aspects of the regime’s functioning. In recognition of these facts, I will adopt herein a modified version of the single-treaty-based conception of transparency originally suggested by Abram Chayes, Antonia Handler Chayes and Ronald

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Schneider and Gabrielle Kaufmann-Kohler. Arbitrator Jan Paulsson (Swedish) initially co-authored the background report that framed the Working Group’s discussions, then represented the views of the LCIA before the Working Group, and later served as an intergovernmental representative on behalf of Bahrain. Some jurisdictions allow for private arbitration of tort claims, anti-trust claims and other non-contract-based claims where an arbitration agreement specifically authorizes them. But in such jurisdictions, the effects of the arbitration ruling are still limited to the contracting parties themselves. See generally Alan Redfern/Martin Hunter, Law and Practice of International Commercial Arbitration (London: Sweet & Maxwell, 4th edn, 2004). Examples of challenged measures have included environmental laws, human rightspromoting measures, and public health measures. For an overview of recent controversial cases, see Nathalie Bernasconi-Osterwalder/Lise Johnson (eds.), ‘International Investment Law and Sustainable Development: Key Cases from 2000–2010’, 2011, available at: www.iisd.org.

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Mitchell. For present purposes, transparency means: ‘[t]he adequacy, accuracy, availability, and accessibility of knowledge and information about the policies and activities of [the international investment law regime and its participants], and of the central organizations [functioning within] it on matters relevant to compliance and effectiveness, and about the operation of the norms, rules, and procedures [underlying the regime]’.25 Three features of this rough working definition merit attention. First, it is intentionally open with respect to subject matter scope (transparency in respect of what?) and intended addressees (vis-à-vis whom?) This allows it to be flexible enough to function in a multitude of contexts. Second, the definition is equal parts objective and subjective. It calls for information to be not only ‘available’ but also ‘accessible’, ‘adequate’, ‘accurate’ and ‘relevant’. Each of these terms can be specified, but their precise specification will vary according to the number and type of stakeholders whose interests may be implicated in each context.26 Third, it is important to recognize what this conception of transparency excludes. In emphasizing information about the operation of the international investment law regime, I omit two related but distinct phenomena – namely participation rights and accountability mechanisms. I do so to remain faithful to the present book’s objective of shedding light on the meaning of transparency qua transparency. Moreover, I do so to underscore that the debate over the appropriate form and content of transparency norms within international investment law cannot be reduced to the parallel debate over amicus curiae participation in investor–State arbitration proceedings.27 Nor should it 25

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Abram Chayes/Antonia Handler Chayes/Ronald Mitchell, ‘Managing Compliance: A Comparative Perspective’, in Edith Brown Weiss/Harold K. Jacobson (eds.), Engaging Countries: Strengthening Compliance with International Environmental Accords, Global Environmental Accord: Strategies for Sustainability and Institutional Innovation 39 (Cambridge Mass.: MIT Press, 1998), 39–62, 41 (present author’s adaptations indicated in square brackets). E.g. in my above hypotheticals, one would expect to encounter a large number of potentially impacted stakeholders in scenario one (environmental regulation). The size of the stakeholder group in the other two scenarios might range from very small to very large, depending upon the reasons for the expropriation (scenario two) and the type of concession agreement (scenario three). For relevant discussions, compare Daniel Magraw Jr./Niranjali Amerasinghe, ‘Transparency and Participation in Investor–State Arbitration’, ILSA Journal of International and Comparative Law 15 (2009), 337–360; Alexis Mourre, ‘Are Amici Curiae the Proper Response to the Public’s Concerns on Transparency in Investment Arbitration?’, Law and Practice of International Courts and Tribunals 5 (2006), 257–271;

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be conflated with the ongoing discussions as to how best to make investor–State dispute resolution more politically accountable to various key constituencies28 and how to increase the international investment law regime’s stability, predictability and legitimacy overall.29 Transparency plays an instrumental role in all of these debates, but it also has an inherent value which transcends them. Focusing on transparency for its own sake can thus help to advance our understanding on multiple fronts simultaneously.

3. The International Investment Law Regime’s Three Levels of Transparency Beginning with this information-centric notion of transparency, the next step is to map out the present state-of-the-art. What follows is not a comprehensive discussion of every facet of the system.30 Rather, the aim is to flesh out a conceptual framework that can help to facilitate more detailed future analyses of the international investment law regime’s key transparent, semi-transparent and non-transparent features. As with all labelling exercises, sorting information into these categories entails making both descriptive and normative judgements. In what follows I shall try to be explicit about these as and when they arise.

28

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Florian Grisel/Jorge Vin˜ uales, ‘L’amicus curiae dans l’arbitrage d’investissement’, ICSID Review – Foreign Investment Law Journal 22 (2006), 380–432; and Luke E. Peterson, ‘Amicus Curiae Interventions: The Tail that Wags the Transparency Dog’, 27 April 2010, available at: http://kluwerarbitrationblog.com. See e.g. Brigitte Stern, ‘L’entre´e de la socie´te´ civile dans l’arbitrage entre Etat et investisseur’, Revue de l’arbitrage 2 (2002), 329–345; and Jose´ Alvarez, ‘Why are We “Re-calibrating” Our Investment Treaties?’, World Arbitration and Mediation Review 4 (2010), 143–162. See, on this point, the emerging ‘international public law’ movement, as propounded by Stephan Schill, ‘Enhancing the Legitimacy of International Investment Law: Conceptual and Methodological Foundations of a New Public Law Approach’, Virginia Journal of International Law 52 (2011), 57–102 (and references cited therein). E.g. space constraints prevent me from exploring the transparency implications of contract-based investor–State disputes, whose dynamics are often closer to those of ordinary commercial arbitration. For views on transparency in the international commercial arbitration context, see the articles in ‘Confidentiality versus Transparency in International Arbitration’, Transnational Dispute Management 2 (2011), Conference Reports. See also Catherine Rogers, ‘Transparency in International Commercial Arbitration’, University of Kansas Law Review 54 (2005–2006), 1301–1337.

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Transparent Aspects of the International Investment Law Regime (Things Generally Known or Easy to Discover)

First, some heartening news: we actually know a great deal today about the functioning of the international investment law regime, or at least, a great deal more than in the past. In respect of foundational texts, the major multilateral conventions that serve as the cornerstones of the system – namely, the ICSID and New York Conventions – have always been matters of public record. The same is true of a large proportion of the investment regime’s more than 3,000 bilateral and regional treaty texts granting substantive protections to foreign investors and/or placing national or international enforcement mechanisms at their disposal. Advances in information technology have made most of these treaties accessible to anyone with an internet connection.31 Countryspecific transparency practices, meanwhile, now ensure the ready availability of many States’ unilateral investment promotion statutes.32 As a result, with the important exception of investor–State contracts, the majority of the international investment law regime’s rights-granting and jurisdiction-delimiting texts are, as a general rule, publicly available.33 Transparency proponents have nevertheless found themselves unsatisfied with this state of affairs, and understandably so. It is one thing to place existing investment treaties in the public domain after-the-fact. It is quite another to render transparent the process by which such treaties are concluded. Concerns linger because, until quite recently, major capital-exporting countries drafted boiler-plate investment treaty texts in closed processes controlled by internal agency bureaucrats and arguably influenced by big business. Some of these texts then became the templates for BITs that were signed as ‘photo ops’ by visiting dignitaries upon the occasion of official State visits. Recently scholarly work suggests that thousands of investment treaties went into force in the 1990s

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UNCTAD maintains the most up-to-date compilation of BITs available at: www. unctadxi.org. In addition to their publication on numerous country-specific websites, key regional investment treaties and model investment treaties are available at: http:// italaw.com. One example is Venezuela, Investment Promotion and Protection Law, Decree No. 356, 3 October 1999, art. 22 which has recently received wide publicity in the context of several investor–State arbitrations, including ICSID, Mobil v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/27, Decision on Jurisdiction of 10 June 2010. But see (n 66) below and accompanying text.

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with very little input into, or even awareness of, the treaties on the part of either civil society or the legislative branches of many countries.34 Inauspicious as these beginnings may seem, transparency has made significant inroads into the treaty-negotiating process in recent years. Thanks to the civil society outcry engendered by a few notorious early North American Free Trade Agreement (NAFTA) claims,35 the United States and Canada moved to introduce greater openness into several aspects of the investment law regime. This gave rise to a new generation of ‘model BITs’ whose proposed contents are routinely disclosed in advance by the responsible government agencies and then revised in response to extensive public comment and legislative review processes. Numerous countries have followed suit, instituting model BIT programmes or otherwise conducting public reviews of their investment treaty practices.36 The EU organs recently endowed by the Lisbon Treaty37 with the competence to determine the EU’s future investment treaty relations so far appear to be falling in line with this trend.38 Indeed, it seems that the adoption of transparent processes for the drafting of investment treaty texts is quickly becoming the norm, at least for democratic States.39 Should this practice eventually achieve universal acceptance, it would eliminate a notable incongruity within the international investment law system, since most investment treaties already impose substantive transparency obligations upon host State governments in their dealings with foreign investors.40 Even where investment treaties lack explicit 34

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For a persuasive empirical validation of this narrative of the diffusion of BITs, backed by qualitative accounts from numerous investment treaty negotiators, see Lauge Skovgaard Poulsen/Emma Aisbett, ‘When the Claim Hits: Bilateral Investment Treaties and Bounded Rational Learning’, World Politics 65 (forthcoming). An overview is provided in Jack R. Coe Jr., ‘Transparency in the Resolution of Investor–State Disputes – Adoption, Adaptation, and NAFTA Leadership’, University of Kansas Law Review 54 (2006), 1339–1385. These include Australia, Canada, Colombia, France, Germany, India, Norway, South Africa, the UK, and the US. Unless otherwise noted, all of the investment treaty texts and model texts cited herein are available for download at one or both of the following website: http://italaw.com/investmenttreaties.htm and http://www.unctadxi.org. Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, 13 December 2007, OJ 2007 No. C306/01. See generally Angelos Dimopoulos, EU Foreign Investment Law (Oxford University Press, 2012), part 2. Not surprisingly, non-democratic governments have proven less responsive to this trend. See e.g. ‘2012 US Model Bilateral Investment Treaty’, available at: www.ustr.gov, art. 11.

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transparency obligations, scholars and arbitrators often read implicit obligations into the texts by identifying transparency as a core component of either the treaty-based ‘fair and equitable treatment’ standard, the customary international law-based ‘minimum standard of treatment’, or the general international law notions of ‘good governance’ and the ‘rule of law’.41 Some of these reading-in exercises have invited considerable critique.42 But most commentators now agree that the substantive law of international investment does, at a minimum, require host States to disclose to foreign investors the basic information concerning laws and regulations affecting their investments, both before and after the investor’s initial commitment of capital.43 In light of this, substantive law may represent the area of the international investment law regime wherein transparency principles have penetrated deepest. The forward march of transparency has been less sweeping on the institutional front.44 Information concerning the various arbitral institutions that play a role in investor–State arbitration proceedings – including their basic operating structures and associated sets of procedural rules – rests within the public domain.45 But beyond this bare minimum, the transparency practices of the major institutions vary widely. NAFTA offers the most transparent institutional support structure for investor–State dispute settlement. In 2001, the three NAFTA State parties issued a ‘Note of Interpretation’ in which they made transparency the default norm in all investor–State complaints brought under NAFTA chapter 11.46 As a result, 41

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Most famously, the Tecmed tribunal stated: ‘[t]he foreign investor expects the host State to act in a consistent manner, free from ambiguity and totally transparently in its relations with the foreign investor, so that it may know beforehand any and all rules and regulations that will govern its investments, as well as the goals of the relevant policies and administrative practices or directives, to be able to plan its investment and comply with such regulations’. ICSID, Tecnicas Medioamibiantales Tecmed S.A. v. The United Mexican States, Award of 29 May 2003, ICSID Case No. ARB (AF)/00/2, para. 154. Particularly those which attempt to tie a host State’s transparency obligations to a particular investor’s ‘legitimate expectations’. See e.g. Jürgen Bering et al. (International Law Association German Branch Subcommittee on Investment Law by the Working Group), General Public International Law and International Investment Law – A Research Sketch on Selected Issues, Beitrage zum transnationalen Wirtschaftsrecht 105 (2011), 26–27. Even where a host State’s domestic law does not so require. The extent to which this fact has attracted popular notice became clear with the publication of ‘Behind Closed Doors: A Hard Struggle to Shed Some Light on a Legal Grey Area’, The Economist (25 April 2009). Details may be downloaded from the websites of the respective institutions. NAFTA Free Trade Commission, ‘Notes of Interpretation of Certain NAFTA Chapter 11 Provisions’, 31 July 2001, available at: www.naftaclaims.com, part A; see also Coe, ‘Transparency in the Resolution’ 2006 (n 35). Similar transparency requirements were

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the public now has free access to a wealth of information concerning every NAFTA dispute, including the composition of the tribunal, the memorials and pleadings of the parties (both written and oral), decisions on challenges to arbitrators, and the orders and awards of the tribunal.47 ICSID has so far taken a more reserved approach to transparency. The Centre publishes on its website basic procedural details concerning every dispute registered by the secretariat,48 but the revised 2006 ICSID arbitration rules still prohibit the Centre from publishing a tribunal’s award in its entirety without the consent of both disputing parties.49 Such consent is usually forthcoming in practice, with the result that most awards are published in full.50 Even when this does not occur, the rules require ICSID to publish excerpts of the tribunal’s legal reasoning.51 The oral and written submissions of the disputing parties and their experts and witnesses, by contrast, almost always remain confidential. In this respect, ICSID’s institutional support for transparency in investor–State arbitration lags behind that of NAFTA. As to the other major institutional players, UNCITRAL is the only one that has recently reviewed its transparency requirements for investor–State arbitration. At its Forty-first session in 2008, the Commission recognized ‘the importance of ensuring transparency in investor–State dispute resolution’.52 The Working Group tasked with implementing the Commission’s mandate met numerous times over the course of several years, welcoming input not only from governmental delegates but also from civil society organizations and industry associations. A few pro-transparency delegations – notably the US and Canada – advocated the adoption of NAFTA-like transparency obligations for all

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later included in art. 10.21 of the US-Dominican Republic–Central America Free Trade Agreement (DR-CAFTA) as well as ‘2012 US Model BIT’ (n 40), art. 29. Redactions may be made to protect confidential, privileged or otherwise protected information. This includes the existence of a dispute, the composition of the arbitral tribunal, and the status of the proceedings. ICSID, ICSID Convention, Regulations and Rules, ICSID/15/Rev. 1, January 2003, 99–127: Rules of Procedure for Arbitration Proceedings (Arbitration Rules), rule 48 (4); ICSID, ICSID Additional Facility Rules, ICSID/11/Rev. 1, January 2003, rule 53. Often one or both parties will have an interest in disclosing the award, e.g. for enforcement or public relations reasons, and nothing in the rules prevents the parties themselves (as opposed to the Centre) from doing so. ICSID, ICSID Convention, Regulations and Rules, ICSID/15/Rev. 1, January 2003, 99–127: Rules of Procedure for Arbitration Proceedings (Arbitration Rules), rule 48(4). Report of the United Nations Commission on International Trade Law, Forty-first session, 16 June–3 July 2008, para. 314.

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future investor-State arbitrations to be conducted under the UNCITRAL rules.53 But other delegations opposed this approach and instead favoured the mandatory application of the new transparency requirements only on a prospective basis.54 In the end, this latter position carried the day. The upshot is that the new UNCITRAL transparency requirements will apply only in respect of investor–State claims arising out of any treaties adopted after the enactment of the revised rules. All claims arising under the existing universe of 3,000 treaties will continue to be exempt from any transparency requirements unless the disputing parties agree otherwise or unless the treaties are proactively amended by their contracting state parties to explicitly incorporate the new rules.55 It remains to be seen whether any States will actually take up the difficult task of treaty amendment so as to render the UNCITRAL transparency reforms effective in practice.56 To summarize, then, the following major features of the international investment law regime currently exhibit a high degree of transparency: (1) the foundational texts which provide the architecture of the system (including the ICSID and New York Conventions); (2) the contents of a large proportion of the existing stock of bilateral and regional investment treaty texts and domestic investment statutes; (3) the model investment treaty-making processes employed prospectively by major developed countries and increasingly also by democratic developing countries; (4) the content of the laws and regulations imposed by host States upon foreign investors and their investments; and (5) the conduct of investor–State dispute resolution proceedings and their outcomes under NAFTA and its progeny and, to a lesser extent, under ICSID. All of this readily available, accessible and useful information adds up to a sizeable body of public knowledge. It is a limited body, to be sure, and perhaps difficult for the non-specialist to grasp, but it is significant nonetheless.

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Most civil society observers to the Working Group’s sessions also took this position. These delegations argued that superimposing mandatory new transparency requirements onto already existing treaties would require an ‘evolutive’ interpretation of the existing treaties which would be impermissible under the standard interpretive principles of international law. This argument was rejected by the US and Canada. UNCITRAL, Report of Working Group II (Arbitration and Conciliation) on the work of its fifty-eighth session (New York, 4–8 February 2013), UN Doc. A/CN.9/765, paras. 75–78. Given the highly charged political climate surrounding the negotiation of investment treaties at present, the prospects do not seem high.

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3.2 Semi-transparent Aspects of the International Investment Law Regime (Things Most People Could Piece Together if They Really Wanted to) So much for the largely transparent aspects of the international investment law regime. A more interesting category comprises things one could know about the international investment law system if only one tried a little harder. I label such aspects of the international investment law system ‘semi-transparent’ because – although the raw information is out there – it is not readily available in a form that is useful to interested stakeholders. This information comes in two basic types.

3.2.1 Information That is Unnecessarily Difficult to Obtain This type encompasses information which is public in principle but which can only be accessed through opaque or unduly onerous procedures. The core problem, for purposes of my working definition of transparency, is availability. To take an example, under article 102 of the United Nations Charter, UN member States are required to deposit international treaties with the UN Secretariat, which must, in turn, publish them.57 Where this is done, the treaties soon become available for free download through the UN treaty series website and, in the case of investment treaties, the online United Nations Conference on Trade and Development (UNCTAD) database.58 Yet many States are delinquent in notifying their investment treaties to either the UN Secretariat or UNCTAD.59 In 2009, when a handful of South African civil society organizations sought to review two treaties under which some European investors had challenged a portion of South Africa’s Black Economic Empowerment legislation,60 they found 57

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Arguably this duty is not absolute, as many inter-State agreements on military cooperation, intelligence gathering, etc. routinely go unpublished. But the confidentiality rationales applicable to such agreements seem inapposite in the case of economic treaties. Indeed, a major reason for the creation of the Bretton Woods institutions was to remove inter-State economic relations from the realm of secretive and destabilizing political wrangling by integrating them into an open and orderly international system of regulation. See UNCTAD, ‘Bilateral Investment Treaties’, available at: www.unctadxi.org. UNCTAD does not rely solely on the UN Secretariat for its data. It also directly solicits the responsible governmental agency within each UN member country on an annual basis, requesting a complete listing of each State’s investment treaties. And in fulfilling similar obligations under domestic law. ICSID, Piero Foresti and Others v. The Republic of South Africa, Award of 4 August 2010, Case No. ARB(AF)/07/01, paras. 27–29.

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themselves unable to locate the treaties. To obtain them, the organizations had to lodge an application under South Africa’s Promotion of Access to Information Act – an efficacious but time-consuming administrative process.61 Even today, more than three years after the South African government launched a public review of its investment treaty program, only twenty-one of South Africa’s reported total of forty-one signed BITs are available on the UNCTAD website. This amounts to a 51% disclosure rate.62 It is possible, of course, that South African practice is anomalous.63 But it must be noted that South Africa’s treaty partners in this episode – Italy, Belgium, Luxembourg and the Netherlands – had also failed to submit the treaties to any international body.64 And given the capacity constraints faced by many developing country governments and the political disincentives to disclosing potentially unpopular treaties, it seems likely that at least some other countries have likewise failed to make all existing investment treaties internationally available. The magnitude of the gap is probably not as negligible as many would presume.65 Whatever the number of non-notified treaties may be, the international investment law regime fails to meet the availability requirement of transparency in respect of this portion of its textual underpinnings.

3.2.2 Information That is Difficult to Make Use of A second type of semi-transparent information consists of that which is not fully transparent because it fails to satisfy common-sense notions of usefulness. It is here that the open-textured adjectives from my working definition of transparency make their entrance, calling for an evaluation 61

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One wonders how the European investors in Piero Foresti came to possess copies of the treaties. Perhaps they had been published in the domestic governmental register of one of the investors’ home countries. South African officials have suggested that the majority of the undisclosed treaties are not yet in force, having been signed but not ratified. If so, this offers scant comfort to stakeholders who wish to comment on whether those treaties should be ratified – a desire which seems particularly reasonable in respect of treaties that were originally negotiated without any public comment or parliamentary input. South Africa may have had a special incentive to withhold publication of its other treaties so as to dissuade other potential challenges to its Black Economic Empowerment policies. The two missing treaties have since been uploaded to the UNCTAD website. UNCTAD officials were not at liberty to provide an official estimate. But sources familiar with UNCTAD’s methodology, including country response rates and various political considerations hampering data collection, suggest that UNCTAD’s database (the most comprehensive available) is most likely ‘significantly incomplete, perhaps on the order of 30% missing’, particularly as regards signed-but-not-yet-ratified treaties.

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of what constitutes ‘adequate’, ‘accurate’, ‘accessible’ and ‘relevant’ information. Some concrete examples will help clarify the dilemmas raised by this type of semi-transparent information. Suppose one wanted to know how median arbitration costs or length of proceedings at ICSID compared to those for comparable cases administered under the UNCITRAL or ICC rules. Most arbitral institutions either do not collect such information or do not make it public.66 One would need to download all of the available cases from a selection of websites, manually search through each one for relevant passages, and then construct a database to analyse the information. This is doable but highly labour-intensive.67 Yet this information is relevant to the public, since the cost of conducting investor–State arbitration proceedings is paid, at least in part, out of the government fisc.68 Similar challenges face anyone wishing to review qualitative or quantitative information concerning: key aspects of institutional functioning within the international investment law regime (including ethical rules and conflict standards applied); prior disputes (claims and outcomes, trends in interpretation, splits in the jurisprudence, areas of evolving consensus); funding sources (public, private and third-party); the arbitrators who decide investor–State disputes (their backgrounds, training, areas of expertise, scholarly publications, record of previous arbitral appointments and decisions); etc. All of these facets of the international investment law regime are relevant to States, to investors, and to the public at large. They provide important information not only on the interrelationship between States’ international obligations to foreign investors and the scope of their domestic regulatory powers, but also about the integrity and efficacy of the dispute resolution system which determines where these lines are drawn. The difficulty with this type of information is that it is not clear 66

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ICSID, for example, publishes a biannual statistical update disclosing basic information concerning its case load (e.g. number of claims registered and their geographic distribution). See ICSID, ‘The ICSID Caseload – Statistics’, available at: http://icsid.world bank.org; other institutions issue similar reports. No doubt this is why such research is presently performed only by those with a strong incentive to appropriate the information in some fashion – whether for financial gain (law firms), personal prestige (academics), or ideological influence (civil society organizations, including business lobbies). Even where no damages are awarded, the costs of the arbitration are often divided between the disputing parties unless one side has engaged in frivolous or vexatious behaviour. For further detail, see Susan Franck, ‘Rationalizing the Costs of Investment Treaty Arbitration’, Washington University Law Review 88 (2010–2011), 769–852.

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who should bear the burden of packaging it in ways that prove useful to interested stakeholders. Moreover, the packaging exercise itself can raise transparency concerns. There is a fine line between disclosure and marketing. This is especially true where pre-digested information is selectively released while the underlying raw data is withheld.69

3.3 Non-transparent Aspects of the International Investment Law Regime (Things the General Public Does Not Know) By definition, this category presents the greatest descriptive challenge, but thinking through the problem conceptually can provide some starting points for the inquiry. Here again, I divide the non-transparent aspects of the international investment law regime into types. I employ the term ‘public’ to refer to anyone who is unable to access the relevant information independently of any privileged, confidential or contractual relationship and independently of any personal or professional acquaintance with a person who stands in such a relationship.70

3.3.1 Things the Public Has No Right to Know Paradigmatic examples within this grouping include: trade secrets, confidential business information, State secrets, information protected by professional or other legal privilege, etc. Notwithstanding occasional alarmist protestations to the contrary, such information poses no special difficulties for international investment law.71 Both the general principles of international law and the various sets of arbitral rules employed in investor–State dispute resolution allow for the protection of legally privileged information.72 Within specific investor–State disputes, for example, protected information can be presented in camera, scrubbed 69

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One should never presume that non-specialists are incapable of processing specialized information. This excludes, for example: parties to particular disputes; their counsel; arbitrators; arbitral law clerks; legal and administrative personnel of arbitral institutions; and persons who, by virtue of their relationships with any of these individuals, may become aware of the information. This is not to say that privilege questions will not be contested, only that their resolution is no more difficult in international investment law than in any other type of law. Even where arbitration rules do not make these mechanisms explicitly available, arbitrators retain the option to employ them under procedural discretion provisions. See e.g. art. 17(1) of the UNCITRAL, ‘UNCITRAL Arbitration Rules (as Revised in 2010)’, available at: www.uncitral.org (‘Subject to these Rules, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate’).

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from publicly published documents, and otherwise dealt with using the usual methods well known to most domestic legal systems, as illustrated by current NAFTA practice.73 As such, the topic of protected information enters the transparency debate within international investment law principally as a red herring. I therefore set it aside.

3.3.2

Things the Public Has Reason to Believe it May Wish to Know, but Cannot Find Out The foregoing discussion has already hinted at some of the major contenders here. The low-hanging fruit is the subset of investment treaties that have neither been published domestically nor internationally and that – unlike the South African treaties described above – cannot be obtained through compulsory administrative processes. Here again, one can only speculate as to the number of such treaties,74 yet their relevance to the public requires no speculation. Investors have an interest in knowing what protections they enjoy within the territory of foreign States, and citizens have a right to know how the scope or price of their governments’ regulatory powers might be affected by the treaties. Investors, States, and the general public have an equally strong interest in knowing how tribunals conduct investor–State arbitration proceedings and how they interpret broadly applicable international investment texts in practice. Whether one looks at the question from the perspective of the rule of law, access to justice, public accountability,75 or otherwise, it is difficult to conceive a convincing reason why statute- or treaty-based investor–State arbitration proceedings should not be conducted openly and transparently, subject to necessary measures for the protection of privileged information.76 The worry that transparent proceedings might ‘re-politicize’ investor–State disputes seems misplaced in an era when public concern over intrusion by ‘secret tribunals’ into sovereign regulatory powers is itself politicizing the disputes and generating a popular

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Mark Kantor, ‘The Transparency Agenda for UNCITRAL Arbitrations, Looking in All the Wrong Places’, 7 February 2011, available at: www.iilj.org, 18–20. See above (n 63–65). Some tribunals have explicitly recognized such interests. See e.g. ICSID, Aguas Argentinas SA, Suez, Sociedad General de Aguas de Barcelona SA, and Vivendi Universal SA v. the Argentine Republic, Order in Response to a Petition for Transparency and Participation as Amicus Curiae of 19 May 2005, Case No. ARB/03/ 19, paras. 19–23. Purely contract-based claims may present different considerations.

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backlash against the entire international investment law regime.77 Indeed, a growing number of commentators from the commercial arbitration world appear to accept that transparent proceedings should be the norm in investor–State disputes.78 Some even suggest that many investors would happily accept this if they could obtain the assurance of fairer and more predictable dispute settlement in exchange.79 Yet under the most recent versions of the UNCITRAL (2010), ICC (2012), Stockholm Chamber of Commerce (SCC) (2010) and London Court of International Arbitration (LCIA) (1998) arbitration rules, there is no institutional publication of any information pertaining to the conduct of an arbitration proceeding unless both disputing parties agree otherwise.80 Thus, not only the outcome but the very existence of an investor–State dispute may never be disclosed.81 Further, the confidentiality provisions of these rules prohibit tribunals from ordering the disclosure of the disputing parties’ pleadings and evidence without the parties’ consent.82 Some even prohibit the parties themselves from disclosing any information relating to the arbitration unless both provide written consent or unless one party is under a legal obligation to disclose.83 Interim orders, settlement agreements, and orders relating to discontinuation or withdrawal of claims therefore likewise remain non-public.84 77

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Michael Waibel et al. (eds.), The Backlash against Investment Arbitration: Perceptions and Reality (Alphen aan den Rijn: Kluwer Law International, 2010). Rogers, ‘Transparency in International Commercial Arbitration’ 2005–2006 (n 30), 1308 (stating, ‘the right of public access seems self-evident in the context of WTO proceedings and investor-state arbitration, where transparency is important to the institutions’ perceived legitimacy’). Kantor, ‘UNCITRAL Transparency’ 2011 (n 73), 5–6. Estimates as to the percentage of unpublished treaty-based investor–State awards range from 5 to 25%. For a critical appraisal of the ICC’s newly revised rules, see Gus van Harten, ‘A Total Lack of Transparency: Why Responsible Companies and Governments Should Avoid the Revised ICC Rules in Arbitrations Involving States’, 24 October 2011, available at: www.canadianlawyermag.com. See e.g. Arbitration Institute of the Stockholm Chamber of Commerce, ‘Arbitration Rules 2010’, available at: www.sccinstitute.com, art. 46. See e.g. London Court of International Arbitration, ‘LCIA Arbitration Rules’, 1 January 1998, available at: www.lcia.org, art. 30.1. Even where the rules do not prohibit parties from disclosing their own pleadings or those of the opposing party, this is rarely done in practice. Unilateral disclosures tend to annoy tribunals (who like to maintain control over such decisions), which may indirectly diminish the party’s prospects of success. They could also subject the disclosing party to further legal claims, e.g. in the event that it inadvertently discloses confidential business information or trade secrets. In a notable development, the LCIA recently published scrubbed abstracts of decisions on challenges to arbitrators under the LCIA rules in Arbitration International 27 (2011),

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Of course, information on arbitral proceedings sometimes makes its way into the public domain notwithstanding the absence of any formal transparency requirement. One of the parties to a dispute may have an incentive to unilaterally disclose an arbitral award in order to tout its victory. Or disclosure may be legally required, as in the case of reporting requirements imposed by securities and exchange commissions or domestic laws requiring publication of all government budget expenditures (including legal claims paid). In cases subject to the New York Convention, obtaining satisfaction of an award may require presenting it for recognition and enforcement to the domestic courts of some enforcing State. Domestic courts take judicial notice of relevant facts in the course of such proceedings, sometimes even placing the entirety of a previously unpublished award on the record. As to the disputing parties’ pleadings, a noteworthy development recently occurred under the ICSID Additional Facility rules, which (like ICSID’s primary arbitration rules) neither mandate nor prohibit disclosure of parties’ pleadings. In a case attracting widespread civil society interest, the tribunal in Piero Foresti v. South Africa ordered the disputing parties to disclose their written pleadings to five non-governmental amicus petitioners even over the claimant’s objections.85 Yet all of these disclosures remain discretionary and are usually incomplete. No procedural rule or practice norm requires anyone to publish information within this category, and the public has no effective means of demanding access to it, since the information’s very existence may be unknown. Thus, despite the occurrence of substantial leakages, these aspects of the international investment law regime remain largely non-transparent.

3.3.3 Things the Public Might Not Realize It Does Not Know I broach this final category not as one claiming to unveil some special body of insider knowledge, but rather from the perspective of an avid student of international investment law and a close observer of the regime’s functioning. One way to generate useful questions is to consider

85

317–473. Challenge decisions are also regularly published in NAFTA and ICSID proceedings but remain confidential in many other institutional settings. See Gabriel Bottini, ‘Should Arbitrators Live on Mars? Challenge of Arbitrators in Investment Arbitration’, Suffolk Transnational Law Review 32 (2008–9), 341–366. ICSID, Piero Foresti (n 60), paras. 27–29. Note, however, that the disclosures never actually occurred, because the claimant opted to discontinue the claim before (or rather than?) releasing the details of its claim to the public.

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the various features that make highly respected domestic judicial systems function well, ask what counterparts these mechanisms may have in the international investment arbitration world, and then evaluate whether the mechanisms are functioning in a transparent manner in the latter context, given the differences between the two systems. With this in mind, I consider two primary types of information under this heading. Unwitting Knowledge Deficits This type comprises things the public doesn’t know only because no one has ever thought to ask. The individuals who belong to the international investment law epistemic community might describe such information as ‘open secrets’. To those standing outside of this community, however, it is entirely opaque. Much of the information chronicled in Yves Dezalay and Brian Garth’s classic book, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order,86 which helped to demystify the international commercial arbitration world, is of this type. Within the investment arbitration world, unwitting knowledge deficits abound in areas of practical importance to the general public. One topic of current debate among international investment law practitioners concerns whether certain very active investment arbitrators are overextended. Commentators worry that heavy arbitration dockets proliferate scheduling conflicts among three-person arbitral panels, which in turn draws out the arbitration proceedings, delays drafting, and contributes to the growing concern that the entire process is too expensive. It should come as no surprise that the investment arbitration community has developed a panoply of solutions to this dilemma. Some arbitrators open up boutique arbitration law firms and employ full-time, salaried associates to handle all manner of tasks behind the scenes. Others hire law student research assistants whom they pay at a pre-set hourly rate. Still others engage no assistants of their own but instead farm out various tasks to the legal counsel87 of whichever institutional secretariat is overseeing the arbitration at hand. The specific arrangements may vary from one arbitration to the next, even in respect of the same arbitrator applying the same set of arbitration rules and under the administrative auspices of the same arbitral institution. 86

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Yves Dezalay/Brian Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (University of Chicago Press, 1996). Often the person designated on the award as the tribunal’s secretary.

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There is nothing inherently untoward in any of these practices. Most governments provide domestic judges with law clerks and other types of legal and administrative assistants to help judges handle more cases in a shorter period of time. This does not impact the authoritativeness of the ultimate decisions, which remain the responsibility of the decisionmakers themselves irrespective of what type of involvement their various underlings may have had along the way. But unlike the judicial setting, arbitrators are hired for their personal expertise and receive hefty sums for each day spent on a case.88 The manner in which arbitrators make use of associates, assistants and institutional secretariat personnel therefore has direct financial implications for taxpayers whose governments become embroiled in investor–State disputes, for which the tribunal’s costs alone have sometimes exceeded USD 10 million.89 It could be that arbitrators who perform every last scrap of work by themselves end up taking longer and costing disputing parties more than those who outsource a significant number of tasks to junior persons (and bill fewer arbitrator hours as a result). Or the converse might be true. The difficulty, from a transparency standpoint, is that it is not presently possible to study the cost or quality implications of different models. While some arbitrators’ assistance arrangements are disclosed in writing before the disputing parties finalize their arbitrator appointments, many are not. And even when they are disclosed in advance to the disputing parties, the information is not often made available to the public at large.90 In short, the great diversity and general opacity of the practices, combined with the lack of critical inquiry into their financial and ethical implications, turns this into an unwittingly non-transparent feature of the international investment law regime. Similar examples could be given in respect of the inner workings of arbitral institutions, the ethical

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In ICSID administered cases, the standard rate is USD 3,000 per day, although this is frequently negotiated up in practice. ICSID, ‘Schedule of Fees’, 1 January 2012, available at: https://icsid.worldbank.org, para. 3. This excludes the disputing parties’ own legal costs, counsel’s fees and any substantive damages as may be awarded by the tribunal on the merits. See figures cited in Franck, ‘Rationalizing the Costs’ 2010–2011 (n 68), 785 and references cited therein. Note that the arbitration costs must be paid irrespective of whether a claim succeeds or fails. The ICC rules are unique in requiring assistants’ fees to be deducted from (rather than charged in addition to) the institutionally-set schedule of arbitrators’ fees. Even so, the proportion of assistant to arbitrator fees need not be disclosed.

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practices followed by counsel and expert witnesses, and numerous other topics debated within the international investment law world.91 Intentional/Strategic Knowledge Deficits The information falling within this final class consists of things at least some people do not want the general public to know because they have strong incentives to keep the information private. These titbits are different from the previous category in that they come to light, if at all, only when someone from inside the knowledge-holding community either slips up or revolts. A high-profile example is the separate opinion penned by arbitrator Jan H. Dalhuisen in the Vivendi II annulment decision.92 Jan H. Dalhuisen chastised the ICSID Secretariat for attempting to act as a ‘fourth member’ of the tribunal even to the point of approaching individual tribunal members ‘informally, with a view to amending the text’ of the tribunal’s award.93 He further lambasted the Secretariat’s mistaken notion that it could act as ‘the voice of a jurisprudence constante’ which somehow gave it an ‘autonomous right of intervention’,94 notwithstanding the fact that international investment arbitration has no doctrine of formal precedent and that the ICSID arbitration rules mandate the confidentiality of a tribunal’s internal deliberations. Several prominent investment arbitrators were quick to contest Jan H. Dalhuisen’s depiction of ICSID’s general practices, which raises questions as to the generalizability of his observations. Even so, his remarks illustrate the type of information which could potentially tarnish the reputations or livelihoods of those in the know and which may be, for that reason, kept tightly under wraps. Other examples prove less unseemly when viewed through the comparative lens of domestic judicial practice. For instance, the international law firms with the largest and most lucrative investment arbitration practices have amassed a great body of knowledge over time concerning the personal characteristics of individual arbitrators, including: which 91

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The contents of various sets of existing and proposed ethical guidelines are well known, but this tells us little about which guidelines are followed in practice. For an overview, see Omar García-Bolívar, ‘Comparing Arbitrator Standards of Conduct in International Commercial, Trade and Investment Disputes’, in American Arbitration Association (ed.), Handbook on International Arbitration (New York: Juris Publishing, 2010), ch. 22. ICSID, Compan˜ ía de Aguas del Aconquija S.A. and Vivendi Universal S.A. v. Republic of Argentina, Second Annulment Proceeding of 17 December 2007, Additional Opinion of Professor Jan H. Dalhuisen, Case No. ARB/97/3. Ibid., para. 9. 94 Ibid., para. 16.

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ones are easiest to work with; which are most effective at persuading their co-arbitrators; which are most and least likely to keep a case on schedule; etc. To some extent this knowledge is unfairly augmented by the firms’ access to unpublished arbitral awards, already discussed above. But the remainder can be chalked up to pure experience, in the same manner that domestic trial lawyers become familiar with the personal characteristics of judges presiding in specific jurisdictions over time. Here again we encounter a non-transparent body of information which the information holders have a clear financial incentive not to disseminate too broadly – it gives them an advantage when potential clients are looking to hire counsel. Yet few would suggest that law firms should be forced to disclose, in the name of transparency, the product of their lawyers’ cumulative experience. Clearly, some normative guidance is needed. It is to this quest that the next part turns.

4. Some Considerations for Future Prescriptive Analyses Given what we now know about the major transparent, semi-transparent, and non-transparent aspects of the international investment law system, how should we think about transparency as a norm within that system? Three things are certain. First, the international investment law regime’s existing transparency practices are diverse. Second, the regime is too complex, decentralized and multi-faceted to allow for the simple implementation of transparency principles across the board. Third, replacing this complex system with a simpler, more unified one from the ground up (as some have suggested) remains politically out of reach, at least for the foreseeable future.95 Yet throwing in the towel hardly seems an appropriate response. A better approach would be to think through the six interrelated prongs of the international investment law regime identified at the outset – namely, its textual, substantive, institutional, jurisprudential, political and sociological components – and consider how to leverage each of these in ways that promote the adoption of stakeholder-sensitive transparency practices within each corner of the system. To help kick-start the conversation, I offer here a road map of possible strategies to explore.

95

For a catalogue of failed attempts to create a multilateral investment regime, see Andrew Newcombe/Lluís Paradell, Law and Practice of Investment Treaties (Alphen aan den Rijn: Kluwer Law International, 2009), ch. 1.

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Moderation

In my view, productive debates about how to implement appropriate transparency practices will continue to falter for as long as vocal segments of the international investment law epistemic community cling to the masts of sinking ships. The time has come to deal in facts. The continual demonization of investment arbitrators and practitioners by some in the non-governmental organization community is as unhelpful as the arbitral community’s irrational insistence – by some in the arbitral community – that arbitral proceedings cannot be conducted transparently without compromising investors’ confidential business information. Rather than beginning at opposite poles, both sides would do better to work outwards from their common concern that the international investment law regime’s transparency deficiencies are undermining its legitimacy and credibility.

4.2

Innovation

The North American experience with the international investment law regime has shown that complexity need not be a recipe for paralysis. The United States and Canada have found ways to respond to public concerns over opaque investment treaty-drafting practices by developing new-model BIT processes that allow the public to monitor and participate in drafting debates. Likewise, the three NAFTA State parties were able to make transparent proceedings the default for investor–State claims under NAFTA by issuing an authoritative ex post interpretation of the treaty. Prospective innovations of this kind may be resisted at first, but with time they gain both momentum and acceptance. Innovation thus represents a viable strategy for States in concluding, renegotiating and authoritatively interpreting their investment treaties and statutes,96 particularly where civil society organizations actively support these efforts.

4.3

Voluntary Dissemination

Some of the regime’s problems of information usability and accessibility are already being partially addressed by a patchwork of voluntary efforts. 96

Anthea Roberts, ‘Power and Persuasion in Investment Treaty Arbitration: The Dual Role of States’, American Journal of International Law 104 (2010), 179–225.

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The ICSID Secretariat releases a semi-annual report detailing statistics on its activities, including cases registered and administered, sources of investor–State claims, regional and sectoral distribution of claims, arbitrator countries of origin, and dispute outcomes by type.97 This is by far the most comprehensive of the institutionally compiled reports.98 Yet it omits key items of interest, such as length of proceedings, administrative fees, tribunal costs, and amounts claimed and awarded. Scholars are increasingly stepping in to fill the gaps.99 The younger generation of scholars, in particular, is spearheading a wave of innovative efforts to improve the transparency of information on: investment treaties and investor–State contracts,100 the selection and performance of arbitrators,101 trends in arbitral jurisprudence,102 and the ways in which normative values impact upon perceptions of fairness in investor–State arbitration proceedings,103 among other topics. All of these efforts remain hampered by lack of access to unpublished data, but they do promise to improve the accessibility and salience of what data is presently available. UNCTAD, meanwhile, has also been proactive in disseminating data on investment treaties and the development impacts of different types of investment promotion strategies.104 Given its mandate as a ‘neutral’ intergovernmental organization, it may be best placed to play a coordinating role among the various academic, institutional and 97

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100 101

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See, most recently, ICSID, ‘The ICSID Caseload – Statistics (Issue 2012–1)’, 2012, available at: http://icsid.worldbank.org. The ICC, by contrast, publicly reports only the annual percentage of ICC-administered cases that involved a State party, without further detail. Susan Franck has been a leader in this effort. See e.g. Franck, ‘Rationalizing the Costs’, 2010–2011 (n 68). See above (n 8) and (n 35). Sergio Puig, ‘Social Capital in the Arbitration Market, European Journal of International Law, vol. 25 (forthcoming) (using network analytics to map the social networks of investment arbitrators); Michael Waibel and Yanhui Wu, ‘Are Arbitrators Political?’, Working Paper (on file with author) (examining empirical trends in arbitral outcomes as a function of arbitrators’ backgrounds). Gus Van Harten, Sovereign Choices and Sovereign Constraints: Judicial Restraint in Investment Treaty Arbitration (Oxford University Press, forthcoming) (using content analysis to examine trends in arbitral reasoning). Susan Franck also makes her data on the evolving investor–State arbitral jurisprudence publicly available at: http://law.wlu. edu/faculty/page.asp?pageid=1185. Daniel Behn, a PhD candidate at the University of Dundee, is using Q-survey methodology to study the ‘Subjectivity of Values in Legal Discourse: Configurative Jurisprudence, Q Methodology, and the Fairness of Investment Treaty Arbitration’. See the various publications: UNCTAD, ‘International Investment Agreements (IIAs)’, available at: www.unctad.org.

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governmental efforts to overcome the international investment law regime’s deficiencies of information usability, accessibility and relevance.

4.4

Reputation

One often overlooked feature of the international investment law regime is the extent to which it depends upon reputation for its survival. Both investment arbitrators and the arbitral institutions that support the industry have a vested interest in maintaining their reputations for impartiality and fair dealing, lest investors or States decide to eschew their services. This suggests that many issues of the ‘unwitting knowledge deficits’ type might be brought to light by a series of new Yves Dezalay and Brian Garth-type studies focusing specifically on investment arbitration and taking account of its unique public dimensions. This approach could prove particularly fruitful in respect of informational deficiencies that touch upon ethical questions, such as arbitrator conflict disclosures, scheduling practices, policies on ex parte communications, etc.105 One drawback is that many of the information-holders may be reluctant to speak candidly on the record. Still, anonymous information is better than no information. And as scholars shed more empirical light on various aspects of the regime’s functioning, the epistemic community’s ‘inner circle’ will have greater incentive to discuss them openly.

4.5

Competition

A final consideration to bear in mind is the degree to which competitive dynamics drive transparency practices within the international investment law regime. This factor is especially relevant for institutions. Of the six arbitration-related institutions known to play the largest roles in the world of investor–State dispute resolution, three are intergovernmental in nature (ICSID, UNCITRAL and the Permanent Court of Arbitration) while three are private bodies (the SCC, ICC and LCIA). Many of the 3,000-plus existing investment treaties allow investors, at their sole option, to select among several possible institutional settings when

105

For an overview of some key ethical issues and ethics guidelines, see García-Bolívar, ‘Comparing Arbitrator Standards’ 2010 (n 91).

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initiating arbitration against a host State.106 Therefore, to the extent that institutional transparency practices may impact upon investors’ forum preferences, arbitration-related institutions have strong incentives to adopt practices that will maximize their chances of attracting investor–State claims. It remains unclear whether the institutions’ best strategy would be to harmonize or to differentiate in such circumstances. Much will depend upon the degree to which States signal their continued willingness to arbitrate investor–State disputes under non-transparent procedural rules as well as the reputational costs exacted by civil society campaigns against ‘secretive’ arbitral institutions. This underscores how the five strategies outlined in this section will be mutually determinative in practice.

5. Whence and whither Transparency in International Investment Law? The Good, the Bad and the Murky Transparency within international investment law has come a long way in a short time. In the pre-NAFTA era of only eighteen years ago, it seems fair to say that opacity was the norm and transparency the exception. Today the situation is mixed. The investment treaty-making process has become much more transparent, particularly in the developed world but also increasingly in democratic countries within the developing world. Investor–State arbitration has likewise become more transparent on the whole. Thanks to the transparency reforms enacted in the NAFTA and ICSID contexts, information about the majority of investor–State arbitral awards is now publicly available. Given ICSID’s apparent sensitivity to stakeholder perceptions of its legitimacy107 and its demonstrated responsiveness to arbitrator-led transparency innovations in the past,108 the smart money might be on further movements in the 106

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This stands in contrast to investor–State contracts, whose dispute resolution clauses tend to be symmetrical. But treaties, not contracts, form the basis for most contemporary investor–State claims. See ICSID, ‘The ICSID Caseload – Statistics’ 2012 (n 97), 10 (showing treaty-based claims made up 80% of total ICSID claims through to the end of 2011). See ICSID Secretariat, ‘Possible Improvements of the Framework for ICSID Arbitration’, 22 October 2004, available at: http://icsid.worldbank.org (proposing changes to the ICSID arbitration rules and the possible creation of an ICSID appellate body in response to concerns over transparency, third-party participation, and inconsistent arbitral awards). ICSID’s 2006 rule revisions included a new rule explicitly authorizing written amicus submissions after two ICSID tribunals had already exercised their discretionary

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direction of an increasing institutionalization of transparency requirements at ICSID. The fact that arbitrators have at times been the progenitors of transparency innovations is also encouraging. UNCITRAL’s recent review of the appropriate practices to apply in investor–State cases shows that it, too, is sensitive to the growing demand for transparency within the regime – at least on a prospective basis. Meanwhile, more and more scholars are paying attention to transparency problems and civil society critiques continue to add urgency to the debate. All of these developments are to be lauded. The bad news is that, despite much progress, many corners of the international investment law regime remain shrouded in darkness. From unpublished treaties and arbitration awards to basic information concerning costs and ethics, semi-transparencies and non-transparencies abound in areas that are of real importance to the public. The complexity of the international investment law regime compounds and sometimes even creates these problems, making it difficult to remedy the regime’s transparency deficits on anything other than a piecemeal basis. We are left with a broad swathe of murky territory in which it is not yet possible to know whether transparency can or will prevail. Not all of the possible strategies have yet been attempted, let alone exhausted. How much of the presently non-transparent information to which the public should have access can be made transparent simply by asking for it? How much of the information which is currently available but not useful can be rendered fully transparent by pursuing cooperative data analysis arrangements between governments, institutions and scholars? We will never know until we try. For now, the ultimate fate of transparency as an overarching norm within international investment law remains to be determined. Only time will tell whether public support for the international investment regime will rise or fall alongside it. authority to do so. See ICSID, Arbitration Rules, 2003 (n 49), rule 37; ICSID, Additional Facility Rules, 2003 (n 49), rule 41(3).

7 Transparency and Exchange of Information in International Taxation carlo garbarino and sebastiano garufi

1. The Strategic Importance of Transparency and Exchange of Information in International Taxation This chapter addresses the internationally relevant issues of transparency and exchange of information in matters involving the taxation of income and capital. To develop such an analysis one has to start with a brief overview of the essential features of the international law of taxation, or in short international tax law. Rules of international tax law govern the internationally relevant legal methods for the resolution of conflicts of tax claims raised by different countries in relation to income that is produced at a cross-border level and revolve around two basic principles: residence taxation and source taxation.1 According to residence taxation, the country of residence of taxpayers (the residence-country) has the power to tax them on their worldwide income pursuant to domestic tax rules that acquire an extraterritorial reach. The residence-country imposes a worldwide (or unlimited) taxation system under which both domestic and foreign income of resident taxpayers is subject to the progressive rate of the residence-country. Thus, by adopting residence taxation the residence-country achieves the so-called ‘capital export neutrality’,2 because it provides the same 1

2

See for example Rutsel S. J. Martha, The Jurisdiction to Tax in International Law: Theory and Practice of Legislative Fiscal Jurisdiction (Deventer: Kluwer Law and Taxation Publisher, 1989); Sol Picciotto, ‘Jurisdictional Conflicts, International Law and the International States System’, International Journal of the Sociology of Law 11 (1983), 11–40; Anwar Shah Qureshi, The Public International Law of Taxation: Texts, Cases and Materials (London: Graham & Trotman, 1994). Peggy B. Musgrave, ‘Capital Export Neutrality’, in Joseph J. Cordes/Robert D. Ebel/Jane G. Gravelle (eds.), Encyclopedia of Taxation and Tax Policy (Washington DC: Urban Institute Press, 2005), 45–46.

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tax treatment (1) to resident persons earning foreign income and (2) to resident persons earning domestic income in the residence country. This is a paramount strategy of the residence-countries that intend to ensure the efficient allocation of investment by their resident taxpayers. By contrast, according to source taxation income produced within a country (the source-country) by taxpayers that are not resident in that country is subject to the same level of taxes as income produced in that country by taxpayers resident in that country. The source-country imposes a territorial (or limited) taxation system under which only the domestic income of resident and non-resident taxpayers is subject to the progressive rate of the source-country. Thus, by adopting source taxation the source-country achieves so-called ‘capital import neutrality’3 because it provides the same tax treatment (1) to resident persons earning domestic income in the source-country, and to (2) non-resident persons earning domestic income in the source-country. As a result the source-country tends to afford equal treatment to non-resident and resident taxpayers in respect to their income arising from investments in that country. When a taxpayer resident in the residence-country produces income in the source-country, such an income is subject to double international taxation. This originates from the fact that the residence-country taxes foreign income of its resident taxpayers according to the worldwide taxation principle, while the source-country taxes the same income because it is produced within its territory. In spite of this taxing power of the source-country, the residence-country has a predominant strategy in so far as its worldwide taxation system ensures that taxes paid in the source-country are fully credited against the taxes paid in the residencecountry. This is achieved by the residence-country through granting to its resident taxpayers full credit for the taxes paid in the source-country. Assuming that such credit is full, the residence-country is indifferent to the taxes raised by the source-country and is in a position to effectively implement its global strategies. There can, however, be moral hazard and asymmetry of information, as the taxpayers may decide to under-report (or not report) in their country of residence (residence-country) their income produced in the source-country. This opportunistic behaviour is generally triggered by the fact that the residence-country cannot enforce its extraterritorial legislative tax claims directly in the territory of the source-country, so 3

Ibid.

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that the likelihood of being apprehended decreases dramatically. Moreover certain source-countries offer low or no taxation to non-residents investing in that country and do not cooperate with residence-countries in respect of the enforcement of the claims of the residence-countries.4 Under-reporting (or no reporting) and diversion of investment toward low-tax source-countries is further intensified by the high mobility of certain types of income, such as passive or financial income, as well as by the obfuscation of relevant tax information pursued by certain sourcecountries through bank secrecy and other forms of confidentiality that are used by those countries as a factor to attract foreign investment.5 These underlying evolutionary forces have resulted in a situation in which the strategic interests of the high-tax residence-countries clash with the strategic interests of the low-tax source-countries. The strategies of those low-tax source-countries has thus been labelled by high-tax residence-countries ‘uncooperative behaviour’, as such behaviour has not only stifled the extraterritorial enforcement of the tax laws of the residence-countries, but also hindered the achievement of their favoured strategies of capital export neutrality. What has ensued has been the characterization of the low-tax source-countries as ‘tax havens’6 that has been actively pursued by the high-tax residence-countries, i.e. basically the OECD countries.7

4

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6

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Mihir A. Desai/C. Fritz Foley/James R. Hines Jr., ‘Do Tax Havens Divert Economic Activity?’, Economic Letters 90 (2006), 219–224; Mihir A. Desai/C. Fritz Foley/James R. Hines Jr., ‘The Demand for Tax Haven Operations’, Journal of Public Economics 3 (2006), 513–531; Dhammika Dharmapala/James R. Hines, ‘Which Countries Become Tax Havens?’, Journal of Public Economics 93 (2009), 1058–1068; Dhammika Dharmapala, ‘What Problems and Opportunities Are Created by Tax Havens?’, Oxford Review of Economic Policy 24 (2008), 661–679. See for example Jack A. Blum et al., Financial Havens, Banking Secrecy and Money Laundering (Washington DC: United Nations Office for Drug Control and Crime Prevention, 1998). See for example Caroline Doggart, Tax Havens and their Uses (London: Economist Intelligence Unit, 2002); Lorrain Eden/Robert T. Kudrle, ‘Tax Havens: Renegade States in the International Tax Regime?’, Law and Policy 1 (2005), 100–127; Anthony S. Ginsberg, International Tax Havens (Durban: Butterworths, 2nd edn, 1997); Mykola Orlov, ‘The Concept of Tax Haven: A Legal Analysis’, Intertax 32 (2004), 95–111. Of course there were other major non-tax reasons that drove the fight against tax havens. In that respect see, for example, Julian Alworth/Donato Masciandaro, ‘Public Policy: Offshore Centres and Tax Competition: The Harmful Problem’, in Donato Masciandaro (ed.), Global Financial Crime: Terrorism, Money Laundering, and Offshore Centres (Aldershot: Ashgate Publishing, 2004), 181–218; Wolfgang Schön, Tax Competition in Europe (Amsterdam: International Bureau of Fiscal Documentation Publications, 2003);

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One can therefore easily understand that exchange of information is interwoven with the worldwide income taxation principle. Residencecountries taxing their residents on income produced both domestically and abroad, in order to enforce their tax legislation and ensure the application of capital export neutrality, need the cooperation of source-countries to obtain information about income produced by their residents in those countries. By neutralizing the more advantageous effect of no or low taxation in a foreign jurisdiction, a capital-export country actually treats foreign-source income abroad as if it was produced domestically and therefore it is in a position to claim to subject foreign income to control through exchange of information and administrative cooperation. Residence taxation operates correctly as long as residence-countries are actually capable of acquiring information from source-countries about income produced in those countries, and therefore one of the main concerns of the tax authorities of OECD countries is the type of tax evasion that is undertaken by resident taxpayers by not reporting or underreporting their income produced abroad. The interdependence of high-tax residence-countries and low-tax source-countries is the natural backdrop to understanding the novel concepts of ‘transparency’ and ‘exchange of information’, which have become pivotal in the current international tax situation. According to the 2001 Progress Report,8 the term ‘transparency’ specifically requires financial accounts to be drawn up in accordance with generally accepted accounting standards, and that such accounts either be audited or filed. Transparency further requires that governmental authorities of both source and residence countries have access to information regarding the ownership of all types of entities and to bank information that may be relevant to criminal and civil tax matters.9 This concept of transparency is instrumental to understanding the other concept of ‘exchange of information’, as the existing information that meets the transparency criterion should also be actually available through reciprocal exchange pursuant to pre-defined legal procedures. Thus, exchange of information can take place only when data to be exchanged is

8

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Jae-myong Koh, Suppressing Terrorist Financing and Money Laundering (Heidelberg: Springer, 2006). OECD, ‘The OECD’s Project on Harmful Tax Practices: The 2001 Progress Report’, available at: www.oecd.org. See ibid., para. 37.

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available through cooperation by the source-countries.10 A situation of exchange of information therefore consists of actual information-sharing between countries that are compliant with transparency, so secrecy and lack of access to information are widely acknowledged to be the key factors of uncooperative behaviour in so far as they facilitate tax evasion and tax avoidance.11 The issues of transparency and exchange of information have gradually percolated up to the attention of the OECD, whose initial work in this area was to develop common standards of transparency, striking a balance between the requirement to ensure access to reliable financial information and the need to avoid placing unnecessary compliance burdens on taxpayers and administrations. A Joint Ad Hoc Group on Accounts was set up in 2002 to promote these common standards within and outside the OECD, especially in relation to financial accounting requirements. In November 2002 the OECD published a ‘template’ on transparency standards, in particular with regard to obtaining information about the beneficial ownership of companies.12 Also at the EU level progress has been made in the area of mutual administrative assistance and corporate governance in tax matters, as well as with respect to taxation of savings. However, these aspects will not be discussed in this chapter.13 10

11 12

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OECD, ‘The OECD’s Project on Harmful Tax Practices: The 2004 Progress Report’, available at: www.oecd.org. Para. 25 emphasizes: ‘[e]xchange of information for tax purposes can only be effective when reliable information, foreseeably relevant to the tax requirements of a requesting jurisdiction, is available or can be made available in a timely manner and there are legal mechanisms that enable the information to be obtained and exchanged’. See in general on those issues Blum et al., Financial Havens 1998 (n 5). See Bruce Zagaris, ‘OECD Proposes New Transparency Standards’, Tax Notes International 9 (2002), 870–875. As far as the European initiatives are concerned, it is worth mentioning that the main initiatives are the following: Convention on Mutual Administrative Assistance in Tax Matter, 25 January 1988, 1966 UNTS 215 (it was signed by the member States of the Council of Europe and the OECD member countries and entered into force on 1 April 1995); EU, Council Directive No. 76/308/EEC of 15 March 1976 on Mutual Assistance for the Recovery of Claims Resulting from Operations Forming Part of the System of Financing the EU Agricultural and Guarantee Fund and of Agricultural Levies and Customs Duties, OJ 1976 No. L 73/18, 19 March 1976, 18–23; EU, Council Directive No. 77/799/EEC of 19 December 1977 Concerning Mutual Assistance in the Field of Direct Taxation, Subsequently Extended Also to Value Added Tax, OJ 1977 No. L 336/15, 27 December 1977, 15–20; amended by EU, Council Directive of 6 December 1979 Amending Directive 77/799/EEC Concerning Mutual Assistance by the Competent Authorities of the Member States in the Field of Direct Taxation (79/1070/EEC), OJ 1979 No. L 331/8, 27 December 1979; and EU, Council Directive No. 92/12/EEC of 25 February 1992 on the General Arrangements for Products Subject to Excise Duty and on

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The analysis developed in this chapter deals with the most recent initiatives undertaken at the OECD level against jurisdictions that are labelled no longer as ‘tax havens’, but as ‘uncooperative jurisdictions’ on the basis of a paradigm shift that emphasizes the cooperative attitude of the targeted jurisdiction in exchanging information for tax purposes, rather than their tax rates. Since the recent G-20 and G-8 summits, lack of transparency and exchange of information have started to be perceived as the main obstacles to the proper enforcement of domestic tax legislations in high-tax countries. In this respect, an analysis of the OECD’s instruments by exchange of information is first provided, by looking at article 26 of the OECD Model Convention, which constitutes the foundational rule on exchange of information at international tax level (section 2),14 as well as the Model Tax Information Exchange Agreement (Model TIEA)15 that has expanded the purpose and reach of article 26

14

15

the Holding, Movement and Monitoring of Such Products, OJ 1992 No. L 76/1, 23 March 1992. These amendments have resulted in a final version, that is EU, Directive No. 2004/56/EC of 21 April 2004 Amending Directive 77/799/EEC Concerning Mutual Assistance by the Competent Authorities of the Member States in the Field of Direct Taxation, Certain Excise Duties and Taxation of Insurance Premiums, OJ 2004 No. L 127/70, 29 April 2004, 70–72; Council Regulation (EEC) No. 218/92 of 27 January 1992 on Administrative Cooperation in the Field of Indirect Taxation (VAT), OJ 1992 No. L 24/1, 1 February 1992, 1–5 (in force since 1 January 2004); EU, Council Directive No. 2003/48/EC of 3 June 2003 on Taxation of Savings Income in the Form of Interest Payments, OJ 2003 No. L 157/38, 26 June 2003, 38–48, for which some amendments were proposed in EU, Commission of the European Communities, Proposal for a Council Directive Amending Directive 2003/48/EC on Taxation of Savings Income in the Form of Interest Payments, COM(2008) 727 final, 2008/0215 (CNS), 13 November 2008; EU, Commission of the European Communities, Proposal for a Council Directive Concerning Mutual Assistance for the Recovery of Claims Relating to Taxes, Duties and Other Measures, COM(2009) 28 final, 2009/0007 (CNS), 2 February 2009; EU, Commission of the European Communities, Proposal for a Council Directive on Administrative Cooperation in the Field of Taxation, COM(2009) 29 final, 2009/9995 (CNS), 2 February 2009. In 2009, the European Commission issued a communication dealing with the introduction of good governance in tax matters (EU, Commission of the European Communities, Communication from the Commission to the Council, the European Parliament and the European Economic and Social Committee: Promoting Good Governance in Tax Matters, COM(2009) 201 final, 28 April 2009), which was adopted by resolution of the European Parliament (EU, European Parliament, European Parliament Resolution of 10 February 2010 on Promoting Good Governance in Tax Matters (2009/2174(INI)), P7_TA(2010)0020, 10 February 2010. OECD, Model Tax Convention on Income and Capital 2010 (Paris: OECD Publishing, 2012), art. 26. OECD, ‘Agreement on Exchange of Information on Tax Matters’, 17 April 2002, available at: www.oecd.org (Model TIEA).

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(section 3). The chapter then discusses the emergence of new standards for the exchange of information (section 4) and concludes by looking at the expansion of the network for tax transparency at the international level (section 5).

2. The Legal Basis of Exchange of Information in International Tax Law The foundational rules of exchange of information are found in the double tax treaties. Those treaties are comprehensive bilateral agreements aimed at avoiding double taxation in cross-border investments involving two countries (the contracting parties). They are generally drafted in accordance with the OECD Model Convention,16 and constitute the main evidence of the existing norms of the international law of taxation recognized by virtually all countries. In addition to the elimination of double taxation, those tax treaties are aimed at the prevention of tax evasion and tax avoidance, and the provisions governing exchange of information are generally deemed to be included within the specific scope of the tax treaties. The norm that deals with exchange of information is article 26 of the OECD Model Convention (hereinafter ‘article 26’), which is generally reflected in the bilateral double tax treaties entered into by individual countries. The first version of article 26 dates back to the OECD Model Convention of 1963. Article 26 then provided that ‘[t]he competent authorities of the Contracting States [exchanged] such information as [was] necessary for the carrying out of the Convention and of the domestic laws of the Contracting States concerning taxes covered by [the] Convention insofar as the taxation thereunder [was] in accordance with [the] Convention’ (emphasis added). In that first version, exchange of information was deemed to be exclusively instrumental to the actual application of the Convention together with the domestic laws of the contracting parties.17 Exchange of information, for example, was, and still is, necessary to ascertain the residence of payers or beneficiaries, to

16 17

OECD, Model Convention 2012 (n 14). The 1963 version of art. 26 added that any information so exchanged shall be treated as secret and shall not be disclosed to any persons or authorities other than those concerned with the assessment or collection of the taxes, which are the subjects of the Convention.

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allocate taxable profits between associated companies, to carry out a mutual agreement procedure, and so on. Further to amendments in the context of the OECD Model Convention of 1977, article 26 in its new version allowed exchange of information concerning taxpayers residing in third countries, and covered also taxes not falling within the scope of the Convention. At the time, the scope of article 26 had been widened and thus the 1963 version was referred to as a ‘narrow exchange of information clause’, while the 1977 version was referred to as an ‘extensive exchange of information clause’.18 The current version of article 26 (introduced in 2005 and amended on 17 July 2012)19 confirms the extensive exchange of information approach, as significant amendments were made to further broaden the scope of exchange of information. According to article 26(1) in the current version, ‘[t]he competent authorities of the Contracting States (. . .) exchange such information as is foreseeably relevant for carrying out the provisions of this Convention or to the administration or enforcement of the domestic laws concerning taxes of every kind and description imposed on behalf of the Contracting States, or of their political subdivisions or local authorities, insofar as the taxation thereunder is not contrary to the Convention’ (emphasis added). The qualification of information as ‘necessary’ in order to be exchanged has been replaced by the qualification of information as ‘foreseeably relevant’ in order to be exchanged, and thus this current version is much broader than the previous one.20 In practice, under the current version of article 26 information to be exchanged does not need now to be strictly necessary for the application of treaty and domestic laws, but it just needs to be foreseeably relevant (i.e. probably relevant in an ex ante perspective) for such purposes. This requirement of ‘foreseeable relevance’ is defined by the commentary to the OECD Model Convention as meaning that information to be exchanged needs to be relevant ‘to the widest possible extent’,21 but clarifies that contracting States are not at liberty to engage in ‘fishing 18

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See Max Widmer, ‘Exchange of Information’, European Taxation 21 (1981), 162–171, 164. See OECD, ‘Update to Article 26 of the OECD Model Tax Convention and its Commentary’, 17 July 2012, available at: www.oecd.org. The OECD Model Convention contains no reference to the purpose of exchange of information. See OECD, ‘Update to Article 26 and its Commentary’ 2012 (n 19), commentary, para. 5.

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expeditions’ or to request information that is unlikely to be relevant to the tax affairs of a given taxpayer.22 This wide scope of exchange of information includes taxes of every kind and description imposed in the contracting States,23 and information should be given only insofar as the taxation under the domestic taxation laws concerned is not contrary to the Convention. Article 26(2) addresses the limits of confidentiality to the use of information exchanged to protect taxpayers’ rights to privacy.24 It establishes that: Any information received (. . .) shall be treated as secret in the same manner as information obtained under the domestic laws of [the requesting] State and shall be disclosed only to persons or authorities (including courts and administrative bodies)25 concerned with the assessment or collection of, the enforcement or prosecution in respect of, the 22

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Ibid. defines as ‘fishing expeditions’ speculative requests that have no apparent nexus to an open inquiry or investigation. Ibid., para. 5.1 now clarifies that a request for information does not constitute a fishing expedition solely because it does not provide the name or address (or both) of the taxpayer under examination or investigation, or where they are spelt differently, or are presented using a different format. The requesting State can in fact include other information that is sufficient to identify the taxpayer. Ibid., para. 5.2 clarifies that the standard of ‘foreseeable relevance’ can be met both in cases dealing with one taxpayer or several taxpayers. Where the request relates to a group of taxpayers, in order not to fall within the prohibition of ‘fishing expeditions’, the requesting State must provide a detailed description of the group and the specific facts and circumstances that have led to the request, an explanation of the applicable law and why there is reason to believe that the taxpayers in the group have been non-compliant with that law supported by a clear factual basis. According to OECD, Model Convention 2012 (n 14), commentary on art. 26, para. 5.4, the information covered by para. 1 is not limited to taxpayer-specific information, as the competent authorities may also exchange other sensitive information related to tax administration and compliance improvement, for example risk analysis techniques or tax avoidance or evasion schemes. On 23 July 2012 the OECD released a report on the confidentiality of information exchanged, which examines all aspects of ensuring the protection of information exchange for tax purposes. See OECD, ‘Keeping it Safe – The OECD Guide on the Protection of Confidentiality of Information Exchanged for Tax Purposes’, 23 July 2012, available at: www.oecd.org. Confidentiality of information is essential for all forms of exchange, but in particular for automatic exchange of information, which was covered by another report released on the same date. See OECD, ‘Automatic Exchange of Information – What it Is, How it Works, Benefits, What Remains to Be Done’, 23 July 2012, available at: www.oecd.org. According to OECD, Model Convention 2012 (n 14), commentary on art. 26, para. 12.1, information can also be disclosed to oversight bodies, which include authorities that supervise tax administration and enforcement authorities as part of the general administration of the government of a contracting State.

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determination of appeals in relation to the taxes referred to in paragraph 1, or the oversight of the above. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.

The 2012 amended version of article 26, however, adds a last sentence to paragraph 2, whereby information received by a contracting State may be used for other purposes if any such use is in accordance with the laws of both States. Moreover, such use must be authorized by the competent authority of the supplying State. Article 26(3) establishes three limitations to the exchange of information among the contracting States, as it provides that exchange of information cannot impose on a contracting State: ‘a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State; b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; [and] c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information the disclosure of which would be contrary to public policy (ordre public)’. The rationale of these limitations is to prevent asymmetric situations in which one of the contracting States is required to do more than the other contracting State. Article 26(4) provides that the requested State ‘shall use its information gathering measures26 to obtain the requested information, even though [the requesting] State may not need such information for its own tax purposes. The second sentence of paragraph 4 also establishes that ‘[t]he obligation contained in the preceding sentence is subject to the limitations of paragraph 3 but in no case shall such limitations be construed to permit a Contracting State to decline to supply information solely because it has no domestic interest in such information’.27 Article 26(5) deals with tax-relevant information held by banks or other financial institutions and establishes that ‘[i]n no case (. . .) the provisions of paragraph 3 [are to] be construed to permit a Contracting State to decline to supply information solely because the information is 26

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According to ibid., para. 19.7, the term ‘information gathering measures’ means laws and administrative or judicial procedures that enable a contracting State to obtain and provide the requested information. Raffaele Russo, ‘The 2005 OECD Model Convention and Commentary: An Overview’, European Taxation 45 (2005), 560–565; Jeffrey Owens, ‘International Taxation: Meeting the Challenges – The Role of the OECD’, European Taxation 46 (2006), 555–558, 557.

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held by a bank, other financial institution, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person’. Thus bank secrecy can never represent a legitimate reason for declining a request of information.28 Austria, Belgium, Luxembourg and Switzerland reserved the right not to include paragraph 5 in their convention,29 but when in 2009 the standards of transparency and exchange of information were universally endorsed, these four States (which appeared on the 2 April 2009 blacklist) lifted their reservation to article 26 of the OECD Model Convention.30

3. Expanding the Legal Basis: The Model Tax Information Exchange Agreement Article 26 as a whole establishes the framework for the exchange of information to be carried out, but it does not clarify how this can actually be done, and consequently the commentary on article 26(9) simply reviews current practices and outlines the main types of exchange of information, which are exchange of information on request, automatic exchange of information, and spontaneous exchange of information. Exchange of information on request is a specific procedure aimed at gathering information with reference to the specific tax position of an individual or a group of taxpayers. Automatic exchange of information consists of a systematic flow of information between the two contracting States.31 This form of exchange of information is becoming a common procedure among high-tax countries, thanks to the new technical possibilities offered by information technology. Finally, spontaneous exchange of information can occur in the case of a State having acquired certain

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For a detailed description of this approach see OECD, Improving Access to Bank Information for Tax Purposes: The 2007 Progress Report (Paris: OECD Publishing, 2007). See OECD, Model Convention 2012 (n 14), commentary on art. 26, paras. 23–26. See OECD, ‘Promoting Transparency and Exchange of Information for Tax Purposes’, 19 January 2010, available at: www.oecd.org (2010 Report), para. 9. The OECD, Committee on Fiscal Affairs, Recommendation of the Council Concerning a Standardised Form for the Automatic Exchange of Information under International Tax Agreements, Recommendation C(81)39, 5 May 1981, aims at setting some common principles but it has largely been ignored. The OECD, Committee on Fiscal Affairs, Recommendation of the Council Concerning a Standard Magnetic Format for Automatic Exchange of Tax Information, Recommendation C(92)50, 23 July 1992, addresses practical topics such as the adoption of a common magnetic format for transmitting information.

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information, which it supposes to be of interest to the other State, specifically in tax fraud cases. The practical issues involved in these types of exchange of information have been addressed by the OECD Global Forum Working Group on Effective Exchange of Information,32 which started to work on a project of a Tax Information Exchange Agreement (TIEA) with a view to promoting actual methods of international cooperation in tax matters through exchange of information in more detail than those canvassed by article 26. In April 2002 the OECD eventually released a Model of Tax Information Exchange Agreement,33 which is a non-binding instrument that serves as a model for assisting contracting States in their bilateral or multilateral negotiations aimed at finalizing actual TIEAs.34 There are some important differences between article 26 and the Model TIEA. First, article 26 has a general scope in so far as it constitutes one of the provisions of tax treaties, while the Model TIEA was specifically designed as a tool to curb tax evasion and tax avoidance. Second, the Model TIEA provides a regulation of exchange of information (sixteen articles) much more detailed than that provided by article 26. The Model TIEA consists of three parts. The first part introduces the basic concepts and explains the context of operation of exchange of information. The second part consists of the actual articles of the model treaty, with the multilateral version presented alongside the bilateral version. The third part is a detailed commentary to each article. The Model TIEA is included in the OECD tax havens project at large as it was developed within the Global Forum, which included both OECD member States and delegates from low-tax jurisdictions. As a result, the Model TIEA constitutes a compromise between the reluctance of the low-tax jurisdictions to exchange information and the position of OECD members expecting full cooperation in tax matters. Article 1 defines the object and scope of the Agreement and, like article 26, contains the expression ‘foreseeably relevant’, as regards the 32

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The Working Group consisted of representatives from OECD member countries as well as delegates from Aruba, Bermuda, Bahrain, Cayman Islands, Cyprus, Isle of Man, Malta, Mauritius, the Netherlands Antilles, the Seychelles and San Marino. OECD, ‘Model TIEA’ 2002 (n 15); for a description of the procedure by which the Model Agreement was drafted, see Johan Barnard, ‘Former Tax Havens Prepared to Lift Bank Secrecy’, Bulletin for International Taxation 57 (2003), 9–13. OECD, ‘Model TIEA’ 2002 (n 15), para. 5 specifies that such a multilateral version should not be considered ‘a “multilateral” agreement in the traditional sense’ but rather as ‘the basis for an integrated bundle of bilateral treaties’.

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information suitable to exchange. The purpose for adopting this expression within article 1 of the Model TIEA is to counteract the denial of cooperation by the requested States when the requesting country cannot certify that the requested information is pivotal in an ongoing investigation. As the reinforced notion of ‘foreseeable relevance’ of information may favour the requesting countries – which on the basis of expected benefits may end up requesting significant amounts of information – the so-called ‘fishing expeditions’ are prohibited.35 Article 2 establishes that ‘[a] requested [State] is not obliged to provide information which is neither held by its authorities nor is in the possession or control of persons who are within its territorial jurisdiction’. While article 3 identifies tax covered by the Agreement (and includes taxes on income or profits, on capital on net wealth, as well as estate, inheritance and gift taxes),36 article 4 contains a list of definitions. Article 5 deals with exchange of information upon request. This type of exchange of information has a wide scope and covers both civil and criminal tax matters, irrespective of whether the investigated conduct constitutes a crime under the laws of the requested State. Thus in practice the so-called ‘dual criminality clause’ is not currently contemplated by the Model TIEA. According to such a clause, information requested could be obtained only if it concerned criminal conduct which was subject to persecution under the domestic law of both the requesting and the requested State. This clause involved protection based on the ‘cooperation principle’, under which a State was not obliged to grant assistance and thus cooperate to repress conduct that was not regarded as criminal under its own law.37 Like article 26, article 5 of the Model TIEA leaves to the contracting States the definition of the most appropriate instruments to gather

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The so-called ‘fishing expeditions’ are inquiries or investigations carried out without any clearly defined plan or purpose in the hope of discovering useful information that may lead to tax charges and/or criminal prosecution; see ibid., commentary, para. 3. In this respect, the scope of the Model TIEA is narrower than the Joint OECD/Council of Europe Convention on Mutual Administrative Assistance in Tax Matters and the EU Directive on Mutual Assistance in Tax Matters, see (n 7). The scope of Model TIEA is also narrower than that of art. 26, which instead includes ‘taxes of every kind and description’. See Xavier Oberson, ‘The OECD Model Agreement on Exchange of Information – A Shift to the Applicant State’, Bulletin for International Taxation 57 (2003), 14–17, 16. The ‘dual criminality clause’ is also endorsed by the OECD, ‘2001 Progress Report’ (n 8) (para. 38).

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information, according to domestic tax practice.38 In particular, article 5(4) establishes that competent authorities should have the power to obtain and provide upon request the following information: a) information held by banks, other financial institutions, and any person acting in an agency or fiduciary capacity including nominees and trustees; b) information regarding the ownership of companies, partnerships, trusts, foundations, ‘Anstalten’ and other persons, including, within the constraints of Article 2, ownership information on all such persons in an ownership chain; [c)] in the case of trusts, information on settlors, trustees and beneficiaries; and [d)] in the case of foundations, information on founders, members of the foundation council and beneficiaries.

Article 5 clarifies that a TIEA does not create an obligation on the contracting parties to obtain or provide ownership information with respect to publicly traded companies or public collective investment funds or schemes unless such information can be obtained without giving rise to disproportionate difficulties. In order to obtain information, the tax authority of the requesting State must: (i) identify the taxpayer under examination or investigation, the nature of the information requested and the form in which it wishes to receive that; (ii) inform the taxpayer about the tax purpose for which the information is sought; (iii) report reasonable grounds for believing that the requested information is available in the requested jurisdiction; (iv) if possible, communicate the name and the address of any person believed to have the requested information. In addition, the request of information must contain a statement that the request is in conformity with the law and administrative practices of the requesting State which is able to obtain the information under its domestic laws or in the normal course of administrative practice. Because of these limitations, it has been noted that ‘it appears that the value of information exchange is primarily limited to confirmation rather than discovery of evasion’.39 Article 6 regulates tax examinations abroad (which are not dealt with by article 26), whereas article 7 (like article 26(2)) deals with the possibilities of declining a request. Since exchange of information is based on the principle of reciprocity, a requested State can legitimately refuse to exchange information if the requesting State is not able to obtain it under 38

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OECD, ‘Model TIEA’ 2002 (n 15), art. 5(2) uses the generic expression ‘information gathering measures’ which has the same meaning accepted in OECD, Model Convention 2012 (n 14), commentary on art. 26, para. 19.7. Martin A. Sullivan, ‘US Citizens Hide Hundreds of Billion in Cayman Accounts’, Tax Notes International 9 (2004), 898–906.

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its own law. The same can occur when requests are not in conformity with a TIEA, when disclosure is contrary to ordre public, or when the requested information would disclose any trade, business, industrial, commercial or professional secret or trade process or would reveal confidential communication between a client and an attorney, solicitor or other admitted legal representative, where such communications are produced for the purposes of seeking or providing legal advice or produced for the purposes of use in existing or contemplated legal proceedings. Article 7 contains a limitation to the exchange of information that is not contained in article 26, as it establishes that requests can be declined if the information is requested by the requesting State to administer or enforce a provision of the tax law of the requesting State, or any requirement connected therewith, which discriminates against a national of the requested State as compared with a national of the requesting State in the same circumstances. Confidentiality is dealt with by article 8, which does not differ from article 26(2). Accordingly, ‘[a]ny information received by [the requesting State must] be treated as confidential and may be disclosed only to persons or authorities (including courts and administrative bodies) in the jurisdiction of the Contracting [State] concerned with the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes covered by [the] Agreement. Such persons or authorities [are obliged to] use such information only for such purposes’ and disclosure of such information is admitted only in public court proceedings or in judicial decisions. No disclosure is allowed to any other person or entity or authority or any other jurisdiction without the express written consent of the competent authority of the requested party. The Model TIEA contains other additional provisions that are not included in article 26 and which are instrumental to the application of actual TIEAs. Article 10 sets forth an obligation to implement domestic legislation aimed at enacting the Agreement, article 11 identifies the language of the exchange, article 12 provides for limitations by other international agreements, articles 13 and 14 regulate the mutual assistance procedure and the depositary’s functions, and articles 15 and 16 contain rules on the entry into force and termination of the agreement. The foregoing overview of the Model TIEA shows that article 26 and the Model TIEA are in a close functional relationship, as they both constitute a constituent feature of the emerging standards of

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transparency in international tax law. On the one hand, the current version of article 26 now includes important amendments that are due to practical issues dealt with by the Model TIEA.40 On the other hand, the Model TIEA articulates in detail the foundational rule of article 26. As a result, article 26 is currently serving in the numerous treaties that are in force as a laboratory to test and develop forms of effective exchange of information that are regulated in more detail in the Model TIEA.

4. The Emergence of a New Standard for the Exchange of Information In addition to the work that has led to the amendments of article 26 and to the Model TIEA to strengthen the exchange of information, the OECD has also developed wider policies in which exchange of information is intertwined with issues of tax transparency and cooperation. The OECD project against harmful tax competition launched in the 1990s actually did not address the exchange of information, but was targeted at those jurisdictions that were attracting geographically mobile activities, such as financial and other services.41 In particular the focus was on harmful tax regimes. According to the 1998 Report,42 there are four key factors denoting the presence of a harmful tax regime: a low or zero effective tax rate on the relevant income, ring-fencing, i.e. the application of tax benefits different from the tax treatment applied to domestic firms, lack of transparency, and the inability or the unwillingness of a country to provide information to other countries. However, from 2001 onwards the Global Forum on Taxation was established and the OECD project began to focus on improving transparency and 40

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According to the OECD, ‘Manual on the Implementation of Exchange of Information for Tax Purposes’, 23 January 2006, available at: www.oecd.org, para. 57: ‘there should be little practical difference between’ art. 26 and the Model TIEA. As underlined in OECD, Model Convention 2012 (n 14), commentary on art. 26, para. 4, the amendments of art. 26 reflect the Model TIEA. See on the initial approach against harmful tax competition Reuven S. Avi-Yonah, ‘The OECD Harmful Tax Competition Report: A Retrospective after a Decade’, Brooklyn Journal of International Law 34 (2009), 783–795; Rajiv Biswas, International Tax Competition: Globalisation and Fiscal Sovereignty (London: Commonwealth Secretariat, 2002); Jacques Malherbe, ‘Harmful Tax Competition and the European Code of Conduct’, Tax Notes International 2 (2000), 151–156. OECD, Harmful Tax Competition: An Emerging Global Issue (Paris: OECD Publishing, 1998), para. 59.

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increasing effective access to exchange of information rather than on the low or zero tax rate and the ring-fencing.43 In that new-approach lower levels of taxation were no longer deemed to be factors to qualify a jurisdiction as a ‘tax haven’ engaged in harmful tax competition,44 and under the pressure of the United States, the OECD soon abandoned the ‘substantial activities’ test.45 The result of this process was that the lack of transparency and of effective exchange of information became the key factors to determine whether a certain country was considered to be an ‘un-cooperative tax jurisdiction’.46 One can thus infer that the release in 2002 of the Model TIEA by the OECD represented a signature of this new approach based on exchange of information. In 2004, explicit relevance was then given by the OECD to the criteria of transparency and exchange of information for identifying the jurisdictions that were the purported recipients of its policies, and such jurisdictions were openly identified as ‘un-cooperative jurisdictions’ rather than ‘tax havens’. The entire OECD campaign then shifted its focus from tax avoidance on geographically mobile activities to tax evasion on passive investment income,47 and this shift was endorsed by the G-20 Finance Ministers at the end of 2004.48 In 2006, when all the harmful tax regimes identified by the OECD had been abolished or amended according to the OECD guidelines,49 the

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See OECD, ‘OECD Pursues a Global Dialogue on International Taxation’, 1 October 2001, available at: www.oecd.org. The OECD confirmed the abandonment of the substantial activities test in the introduction to its ‘2004 Progress Report’ (n 10): ‘[a]lthough a low or zero effective tax rate is a necessary starting point of an examination of a preferential regime, it alone is not sufficient to find harmfulness’. See OECD, ‘2001 Progress Report’ (n 8), paras. 27–28. This change was made in order to secure continued US cooperation in the project following the change of administration in 2001, as was noted by both Akkiko Hishikawa, ‘The Death of Tax Havens?’, Boston College International and Comparative Law Review 25 (2002), 389–418; and Alex Easson, ‘Harmful Tax Competition: An Evaluation of the OECD Initiative’, Tax Notes International 10 (2004), 1037–1077, 1043–1044. See for example Easson, ‘Harmful Tax Competition’ 2004 (n 45), 1061. Ibid., 1038. In this sense, see also Charles E. McLure Jr., ‘Will the OECD Initiative on Harmful Tax Competition Help Developing and Transition Countries?’, Bulletin for International Fiscal Documentation 59 (2005), 90–98. G-20, ‘Meeting of Finance Ministers and Central Bank Governors, Communique´’, 21 November 2004, available at: www.g20.utoronto.ca. With the exception of the Luxembourg 1929 holding companies.

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OECD released a new report,50 the purpose of which was to determine what was ‘required to achieve a global level playing field in the areas of transparency and effective exchange of information for tax purposes’.51 In October 2007, an update to that 2006 report was issued,52 but the OECD claimed that restrictions still remained on access to bank information for tax purposes in three OECD countries (i.e. Austria, Luxembourg, Switzerland) and in a number of offshore financial centres (i.e. Cyprus, Liechtenstein, Panama and Singapore), in spite of public commitments made by these countries to implement standards on transparency and exchange of information developed by the Global Forum.53 The turmoil provoked by the 2008 financial crisis boosted the need of governments to raise revenues by curtailing international tax evasion, as such revenues were needed to finance domestic bail-outs or similar measures, and thus uncooperative jurisdictions became a very hot topic on the OECD political agenda.54 Tax transparency was the focus of the G-20 summits in Washington DC (2008), London (2009), Pittsburgh (2009) and Toronto (2010).55 On 2 April 2009, at the time of the G-20 summit in London claiming for a list of tax havens, the OECD’s Secretary-General issued a new Progress Report on jurisdictions surveyed by the OECD Global Forum in implementing the internationally agreed standards on transparency and exchange of information for

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OECD, Tax Co-operation: Towards a Level Playing Field (Paris: OECD Publishing, 2006). Ibid., para. 7. OECD, Tax Co-operation: Towards a Level Playing Field (Paris: OECD Publishing, 2007). See OECD, ‘OECD Report Progress in Fighting Offshore Tax Evasion, but Says More Efforts Are Needed’, 12 October 2007, available at: www.oecd.org. For example, in the G-20 summits in Washington, London, and Pittsburgh, and the G-8 summits in L’Aquila, and Hokkaido, political leaders expressed their commitment to tackle tax evasion, and their willingness to take action against non-cooperative jurisdictions. Jeffrey Owens, Director of the Centre for Tax Policy Administration of the OECD, declared: ‘[t]he threshold of tolerance of tax evasion has dropped to zero’. See Jeffrey Owens, ‘Moving Towards Better Transparency and Exchange of Information on Tax Matters’, Bulletin for International Taxation 63 (2009), 557–558. At the G-20 Summit held in London on 2 April 2009, the G-20 leaders stated: ‘[w]e stand ready to take agreed action against those jurisdictions which do not meet international standards in relation to tax transparency. To this end we have agreed to develop a toolbox of effective counter-measures for countries to consider’. See the G-20, ‘Declaration on Strengthening the Financial System (Annex to London Summit Communique´)’, 2 April 2009, available at: www.g20.org.

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tax purposes.56 The report distinguished the following four groups of jurisdictions: (1) jurisdictions that had substantially implemented the internationally agreed tax standards;57 (2) tax havens that had committed to the internationally agreed tax standards but had not yet substantially implemented it;58 (3) other financial centres that had committed to the internationally agreed tax standards but had not yet substantially implemented it;59 and (4) jurisdictions that had not committed to implement the internationally agreed tax standards.60 The eighty-four jurisdictions included in the four categories were those which were surveyed by the OECD’s Global Forum on Taxation, i.e. those countries participating in the OECD’s Committee on Fiscal Affairs as ‘observer countries’ (Argentina, Chile, China, Russia, South Africa), as well as countries that met the tax haven criteria and other financial centres. That list was meant to be subsequently updated according to a key indicator, i.e. the achievement by each country of the minimum threshold of twelve minimum agreements on exchange of information. Consequently, the original Progress Report of 2 April 2009 was followed by a new Progress Report of 6 November 2009 that contained the four groups of jurisdictions listed in the original Progress Report and took into account the commitments made by jurisdictions listed at that time. The whole 2009–2010 OECD campaign focused on the standards of transparency and exchange of information with a view to achieving a thorough application of article 26 of the OECD Model Convention and the 2002 Model TIEA.61 As a result of that campaign, ‘internationally agreed standards’ emerged in the context of the OECD’s Global Forum on Taxation. These standards had been originally endorsed by the G-20 56

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OECD, ‘Progress Report: A Progress Report on the Jurisdictions Surveyed by the OECD Global Forum in Implementing the Internationally Agreed Tax Standard’, 2 April 2009. The list included twenty-six OECD countries and fourteen non-OECD countries. The list included thirty-one jurisdictions, all of which are non-OECD countries (i.e. Andorra, Anguilla, Antigua and Barbuda, Aruba, Bahamas, Bahrain, Belize, Bermuda, British Virgin Islands, Cayman Islands, Cook Islands, Dominica, Gibraltar, Grenada, Liberia, Liechtenstein, Marshall Islands, Monaco, Montserrat, Nauru, Netherlands Antilles, Niue, Panama, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines, Samoa, San Marino, Turks and Caicos Islands, Vanuatu). The list included five OECD countries (Austria, Belgium, Chile, Luxembourg and Switzerland) and three non-OECD countries (i.e. Brunei, Guatemala and Singapore). The list included only non-OECD countries (i.e. Costa Rica, Malaysia (Labuan), Philippines, Uruguay). OECD, ‘2010 Report’ 2010 (n 30), para. 13, which will be discussed below.

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Finance Ministers in 2004 and by the UN Committee of Experts on International Co-operation in Tax Matters in October 2008, so that it now serves as a model for the vast majority of bilateral tax conventions entered into by OECD member and non-member countries.62 These emerging standards of cooperation in the exchange of information were based on four elements: (1) the existence of mechanisms for exchange of information upon request, where such information is ‘foreseeably relevant’ to the enforcement of the domestic laws of the treaty partner, (2) the absence of any kind of restrictions on such exchange, such as bank secrecy or other domestic tax interest requirements, (3) the availability of reliable information (in particular bank, ownership, identity and accounting information) in response to a specific request in a timely manner; and (4) respect for the taxpayer’s rights and strict confidentiality rules for information exchanged. The verification of actual implementation of these four elements involves complex fact-finding and investigations, and therefore the OECD adopted a simplified criterion: countries that had signed at least twelve treaties on the exchange of information were presumed to have ‘substantially implemented’ the required standards. Such agreements could consist of either TIEAs or bilateral tax treaties containing article 26 of the OECD Model Convention. The determination of the threshold takes into account: (1) the jurisdictions with which the agreements have been signed (a tax haven which has twelve agreements with other tax havens would not pass the threshold), (2) the willingness of a jurisdiction to continue to sign agreements even after it has reached this threshold, and (3) the effectiveness of implementation.63 On 31 August 2009, the OECD issued the fourth annual report64 containing the assessment by the Global Forum on transparency and 62

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On the OECD campaign, see Oberson, ‘The OECD Model Agreement’ 2003 (n 37), 14–17; Tony Anamourlis/Les Nethercott, ‘International: An Overview of Tax Information Exchange Agreements and Bank Secrecy’, Bulletin for International Taxation 63 (2009), 616–621; Ken Lord, ‘International Tax Cooperation: Recent Trends and Challenges (Part 1)’, The Tax Specialist 13 (2010), 272–290; Ken Lord, ‘International Tax Cooperation: Recent Trends and Challenges (Part 2)’, The Tax Specialist 13 (2010), 26–65; David Spencer, ‘International Tax Cooperation: Centrifugal vs. Centripetal Forces (Part 1)’, Journal of International Taxation 21 (2010), 38–51; David Spencer, ‘International Tax Cooperation: Centrifugal vs. Centripetal Forces (Part 2)’, Journal of International Taxation 22 (2010), 46–60. OECD, ‘Countering Offshore Tax Evasion’, 28 September 2009, available at: www.oecd. org/tax/exchange-of-tax-information/42469606.pdf, 2. OECD, Tax Co-operation 2009: Towards a Level Playing Field (Paris: OECD Publishing, 2009).

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exchange of information in the area of taxation. The report covered eighty-seven jurisdictions, including all the major financial centres around the world, and highlighted the progress made by the Global Forum up to that date, which can be summarized as follows. That report basically brought to an end the process of upgrading countries that were previously deemed to be uncooperative. The situation depicted by that report is, in summary, the following. All OECD countries accepted article 26 (Exchange of Information) of the OECD Model Convention, as updated in 2005, following the withdrawal in March 2009 by Austria, Belgium, Luxembourg and Switzerland of their reservations to article 26. Hong Kong (China) and Macao (China) endorsed the standards at the 2005 Global Forum meeting in Melbourne and they have since enacted legislation to implement them. Singapore endorsed the standards on 10 February 2009 and proposed relevant legislation in June 2009 intended to comply with them. Since the beginning of 2008 more than seventy-five TIEAs based on the OECD model had been signed. Andorra, Liechtenstein and Monaco, which the OECD identified in 2002 as uncooperative tax havens, have endorsed the OECD standards and indicated their willingness to modify their domestic legislation and to enter into agreements for the exchange of information for tax purposes. Niue, identified as a tax haven by the OECD in 2000, reported that it had eliminated its offshore sector and dissolved all of its international business companies, trusts, partnerships or other offshore entities. Brunei, Costa Rica, Guatemala, Malaysia, the Philippines and Uruguay all endorsed the OECD’s standards of transparency and exchange of information, and agreed to implement them. These developments meant that all the countries surveyed in the Global Forum are committed to the standards. The report is constantly being updated. The latest version was published on 5 December 201265 and contains the progress made on transparency and exchange of information, which are the following. The list of jurisdictions that have not committed to the internationally agreed tax standards is blank, as all jurisdictions have currently substantially implemented such standards. The only jurisdictions still included in the ‘grey list’ (i.e. tax havens and other financial centres, which have committed to

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OECD, ‘Progress Report: A Progress Report on the Jurisdictions Surveyed by the OECD Global Forum in Implementing the Internationally Agreed Tax Standard’, 5 December 2012, available at: www.oecd.org/tax/transparency.

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the standards, but which have not yet substantially implemented it) are Nauru and Niue.

5. Building up the Network for Tax Transparency at the International Level The 2009 Report was published in conjunction with the fifth meeting of the Global Forum in Los Cabos, Mexico, on 1–2 September 2009. On that occasion, 178 delegates from 70 jurisdictions and international organizations were called to discuss progress made in implementing international standards of transparency and exchange of information for tax purposes, and how to strengthen the work of the Global Forum. In the light of the need of governments to protect their tax regimes, the main objectives for the meeting were to: agree on restructuring the OECD Global Forum, to expand its membership and ensure its members participate on an equal footing; agree on how to establish an in-depth peer review process to monitor and review progress made towards full and effective exchange of information; and identify mechanisms to speed up the negotiation and conclusion of agreements to exchange information and to enable developing countries to benefit from the new, more cooperative, tax environment. In pursuance with those goals set in Los Cabos, the Global Forum currently includes 120 members on an equal footing, and these members are in the process of implementing a peer review process to ensure that international standards of transparency and exchange of information operate effectively. To that end, a fifteen-member steering group in charge of assisting the Global Forum was established to prepare and guide future work. The peer review process is composed of two phases: phase 1 reviews the legal and regulatory frameworks, while phase 2 assesses the practical implementation of the standards. The outcome of the process consists of establishing whether or not those standards are in place, and in the former case the review may indicate which aspects of the legal implementation need further improvement. The peer review process constitutes a multilateral soft-law instrument aimed at building multilateral consensus on, and compliance with, the standards, but it is not immune from certain criticism. First, the majority of countries represented are OECD members and therefore there is a clear bias in favour of their policies. Second, although in theory there should be a mutual interest by all the parties in the exchange of information, that interest in fact prevails only for OECD members.

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On 3 September 2010, the OECD issued a new report (hereinafter referred to as ‘2010 Report’), containing a background information brief on the work in progress.66 According to the 2010 Report, progress made towards full effective exchange of information has no precedent. The standards on transparency and exchange of information on request, including bank and fiduciary information, is now universally endorsed, and the UN incorporated the OECD standards in the UN Model Tax Convention67 in October 2008.68 Since 2009, almost 800 information exchange agreements have been concluded by jurisdictions, which still in the Progress Report of 2009 had been identified by the OECD as not substantially implementing the standards. Since then, the twenty-nine jurisdictions labelled as un-cooperative have been removed from that category since they have signed at least twelve agreements to meet the standards. The 2010 Report emphasizes that in 2009 the standards were universally endorsed, as the four remaining OECD countries (Austria, Belgium, Luxembourg and Switzerland) removed their reservation to article 26 of the OECD Model Convention on exchange of information. The three non-cooperative tax havens (Andorra, Liechtenstein and Monaco), which refused to endorse the standards, finally did so in March 2010. Costa Rica, Malaysia, Philippines and Uruguay finally committed to implement the standards. Similarly, Brazil, Chile and Thailand withdrew their reservation to article 26. Austria, Andorra, the Bahamas, Chile, Hong Kong, China, Liechtenstein, Macao, China, Malaysia, Panama, the Philippines, San Marino and Singapore have passed legislation aimed at implementing their commitment to the international tax standards. Costa Rica and Guatemala have initiated important legislative changes intended to allow them to meet the international tax standards. These are the main significant results achieved towards a level playing field as regards the exchange of information for tax purposes. The OECD and the Global Forum will monitor their consistent implementation.69 The OECD in the last few years has intervened in a stage of development of international tax law in which there existed no principle in international law establishing an obligation of cooperation between 66 67

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OECD, ‘2010 Report’ 2010 (n 30). UN, United Nations Model Double Taxation Convention between Developed and Developing Countries (New York: United Nations, updated 2011). OECD, ‘2010 Report’ 2010 (n 30), para. 4 69 Ibid., para. 12.

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States in the field of international taxation.70 International customary law did not allow States to interfere in the territorial sphere of each other, unless there was mutual consent. States could not assess or collect their tax claims in foreign jurisdictions, unless the foreign State agreed. Therefore, before the OECD activated its campaign against uncooperative jurisdictions, the common approach to exchange of information was to deny cooperation in cross-border tax matters, and States were not allowed to claim or collect taxes in foreign jurisdictions. Exchange of information was also hindered by practical difficulties71 due to the fact that collecting and transferring complex tax information was a burdensome and time-consuming process. Although it is perhaps too soon to ascertain the existence of a new binding norm of international law that compels States to full tax cooperation in the exchange of information, one cannot deny that the active OECD campaign has at least introduced in the international community what can be defined as new emerging standards in accordance with the canons of soft law. By way of soft-law instruments, namely blacklists and reports, the OECD’s campaign has made a case to the international community for the need to introduce a general obligation upon all States to exchange information in tax matters when requested. These new standards have led to a host of new treaties on exchange of information and have been paralleled by domestic legislation, especially in the US and other major OECD countries, imposing on qualified intermediaries important tasks instrumental to the exchange of information, such as the identification of the parties to the transaction, the reporting of the technical data of the transaction, and so on. Moreover, the implementation of the standards is now monitored by the international community through the peer review process. The outcome of the whole process of emergence of new proposed standards is that the scope of exchange of information in tax matters has been notably widened, and exchange of information itself has become the minimum threshold of feasible cooperation required by high-tax countries vis-à-vis low-tax jurisdictions. The international community of States now requires such a commitment to exchange information

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See for example Ramon J. Jeffery, The Impact of State Sovereignty on Global Trade and International Taxation (The Hague: Kluwer Law International, 1999), 118. Frederick A. Mann, ‘The Doctrine of Jurisdiction in International Law Revisited after Twenty Years’, Recueil des cours 186 (1984), 9–115, 44.

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from ‘un-cooperative tax havens’, and bilateral or multilateral treaties define the scope and limits of the content of such an obligation. An answer about the actual existence of a novel international binding norm on administrative cooperation in tax matters is still pending, given the underlying asymmetries of the peer review process and the need for a continuing review of compliance by the jurisdictions that have accepted the standards but that are still in the process of complying with them. One can therefore conclude that while the emergence of a clear definition of the standards is still in the making, exchange of information is now subject to a set of rules and other normative prescriptions that were previously missing in international tax law. These include international conventions, either bilateral or multilateral, specifically regulating mutual assistance between contracting States and based on the Model TIEA; provisions governing exchange of information embedded in bilateral double tax treaties (article 26); rules regulating mutual assistance within regional contexts, such as the EU rules; and unilateral instruments enacted by individual countries with extraterritorial effect.

8 Transparency and Intellectual Property Protection in International Law thomas cottier and michelangelo temmerman

1. Introduction Transparency is a fundamental principle of law and democracy. It is also an important principle informing commercial and international economic law. It straddles regulations and procedures, and it impacts on the basic fairness, legitimacy, accessibility and effectiveness of regulations and transactions. It is also of importance in reducing asymmetries of information and thus of power in the market place. Overlaps with due process obligations are obvious and, perhaps even more directly, accountability and legal security1 seem to be key to understanding the notion. Be that as it may, transparency is a tool to achieve these higher ends and it is thus subordinate to them. In the specific realm of intellectual property protection, specific higher aims appear: the aim of product innovation, and the aim of providing appropriate information to consumers on products, both goods and services.2 The protection of intellectual property in international law has been strongly influenced by the structure of domestic law both in common law and civil law countries. Intellectual property essentially pertains both to private and public law. It defines, on the one hand, relations among private subjects and competitors. On the other hand, it defines the role of 1

2

Perhaps one can say legal security and accountability are key to the notion of transparency, yet do not define it. These would be the higher aims that the notion is serving, and towards which it must be aimed. Transparency does not in our conception equal accountability, nor does it promise participation – for instance. One could also say that transparency in fact is often misused to avoid accountability and true participation of (third) parties to decision-making and taking. Once the information is out there, one actually speculates on a certain acceptance of the matter and on the pressure for accountability to decrease.

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governments in allocating monopoly rights designed to correct failures in the market of information. Intellectual property thus shares the achievements and problems relating to transparency of law and legal processes in general. Lifting intellectual property to the realm of international law, in an effort to coordinate and even harmonize different legal orders with a view to serving a transnational and increasingly globalized economy, has caused transparency to take on additional traits beyond classical tenets of publicity of, and accessibility to, the law. In particular, we refer to transparency of the operation of international organizations and of negotiation processes. These, in return, are relevant for the legitimacy of the intellectual property rights (IPRs) system, both at the regional and the global levels. Many of the problems and challenges encountered here are of a general nature. They are not specific to IPRs. Transparency of legislation and adjudication, of law enforcement, of the operation of agencies and international organizations, including the hiring of staff, are all problems widely shared with other fields of law. The international IPR system, however, shows a number of interesting traits which makes it worth dedicating a particular chapter of this book to it. The granting of monopoly rights, particularly in patents – timelimited exclusive rights granted to inventors of new, inventive and useful inventions in return for their disclosure to the public at large3 – is conditional upon transparency of information. Thus, a patent owner, in order to obtain protection, is obliged to publish his or her invention, giving sufficient details to enable any skilled person to operate the invention. Today, online databases ensure that this information is widely and easily accessible. The trade-off between transparency and monopoly rights, between public goods and private goods, amounts to the most interesting feature and contribution of IPRs to transparency in international law. Transparency in IPRs is therefore more than information about legal processes, and reaches out to scientific and commercial information, bringing us into the realm of access-to-knowledge and access-to-content debates. It also shows an unusual aspect of the transparency debate: transparency as a choice. This is so because we move here from what one could call ‘public transparency’ to ‘private transparency’: transparency in the head of private (innovative) actors. It leads us out of the realm of State obligations towards that of corporate 3

See, Agreement on Trade-related Aspects of Intellectual Property Rights, 15 April 1994, 1869 UNTS 299 (TRIPs Agreement), arts. 27–34, for the international minimum standards.

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social responsibility. It also brings us into the realm of doubt: how much transparency is actually good for the higher end at stake, namely innovation? Transparency needs and issues, however, vary from one IPR to the other, and generalizations have to be avoided. Copyrights apply in most countries without a necessity for registration. Trademarks only require the disclosure of their existence. A common feature is that IPRs are increasingly traded as such in what is called the intellectual property market place; yet intellectual property offices do not keep track of ownership transactions. This leads to increasing difficulty in knowing who owns what, and where to obtain licences. The overall ownership structures are opaque. Even at high-level business transactions a lack of awareness is very common in this context. For example, when Volkswagen bought Rolls Royce in 1998, it only acquired the rights to the Rolls Royce emblematic ‘Spirit of Ecstasy’ logo and over the shape of the grille; but not over the name ‘Rolls Royce’, which was taken by BMW.4 In this chapter we choose to focus on patents specifically, mainly due to their direct ‘disclosure’ function and to their link to progress in innovation. Patents are also of particular interest in examining the relationship between transparency and the structure of legal norms. Patent law, and in particular requirements and conditions for obtaining patents, is subject to a number of criteria which have remained vague and largely depend upon a case-by-case assessment. There is little predictability in certain cases, and thus a possible lack of transparency. It may be that the inherent vagueness of norms calls for appropriate procedural compensation in order to bring about appropriate transparency. Against this backdrop, we shall first deal with transparency in legal processes, both law-making and law-adjudication. Then the issue of transparency in international organizations relevant to IPRs, in particular the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO), will be broached. The role of international law in remedying and correcting deficiencies in domestic law as an angle of multilevel governance and constitutionalization will also be addressed. The chapter will then deal with the specific functions of transparency in intellectual property law, focusing on the role of transparency for innovation in patents and its role in the competing paradigm 4

Tom Buerkle, ‘BMW Wrests Rolls-Royce Name Away From VW’, New York Times (29 July 1998).

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of protecting undisclosed information and trade secrets. Finally, attention will turn to the quality of patent protection and the problem of open-ended norms and procedural compensation in addressing normative deficiencies in transparency.

2. Transparency and Intellectual Property: The Classical Perspective Transparency has been called an emerging principle at the international level, alongside the progress of globalization. John Braithwaite and Peter Drahos even say that ‘[t]ransparency is the most striking emergent principle of globalisation’.5 Things appear nuanced, however, in international intellectual property regulation. Differentiations are needed. Transparency within organizations, transparency within countries, and transparency between countries all have different dynamics. Furthermore, domestic, regional and international regimes seem to differ strongly in the extent to which they consider the importance of transparency as one of their fundamental tenets.

2.1

Transparency in International Organizations and Law-making

Transparency in the operation of any international organization is a constant challenge in its daily work and essentially a matter of education, awareness and leadership. It forms part of good governance. However, negotiation processes of international treaties and agreements are perhaps the most opaque element of international intellectual property law, only surpassed by the level of opacity characterizing the internal organization of international organizations. Yet negotiating international agreements on intellectual property is not different from negotiating norms in other areas of international law, and especially international trade law. Trade negotiations are shaped by the tradition of diplomacy which inherently prefers operating behind closed doors, limited to representation of governments. None of the intellectual property-related organizations has a structure similar to that of the International Labour

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John Braithwaite/Peter Drahos, Global Business Regulation (Cambridge University Press, 2000), 508. The concept of transparency was used in a broader context by Braithwaite and Drahos, including for instance participatory rights.

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Organization, where the process is shaped by its tripartite inclusion of government, employers and trade unions. The case of intellectual property is of particular interest as it allows comparison of the work of two major organizations dealing with the subject matter at the global level: the WIPO and the WTO. The comparison is particularly interesting as modes of negotiations have shifted over time in what has been a somewhat competitive relationship. One may recall that it was the WTO which incorporated the major conventions administrated by WIPO into the WTO Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs Agreement)6 and thereby subjected them to the jurisdiction, amendment procedure, dispute settlement and enforcement mechanisms of the WTO. These are to be contrasted with much less transparent negotiations on an anti-counterfeit agreement.

2.1.1 Multilateral Undertakings: The WTO and the WIPO Both the WIPO and the GATT (GATT 19477) for a long time operated exclusively in an intergovernmental mode. The process in the WIPO, however, was largely informed by the interests of intellectual property owners, mainly represented by the Association Internationale pour la Protection de la Proprie´te´ Intellectuelle, while domestic producers’ interests prevailed in the GATT, at least behind the scenes. WIPO operated with a top-down model, giving the Director-General and the Secretariat a dominant position in preparing drafts for adoption by the membership. In the GATT, the process was much more driven by members, and bottom-up. The negotiation of the TRIPs Agreement evolved over different stages and drafts coordinated by the Secretariat, while in the WIPO the creative influence of delegations was much less evident. This state of affairs produced a power shift to the GATT and the WTO. WIPO, in response, recently developed a more participatory approach with a broader inclusion of interested NGOs. The WIPO standing committees are openly announced and documented and so are the WTO Ministerial Conferences, which are open also to civil society. Small group meetings, however, do exist. These are rarely 6 7

TRIPs Agreement, 1994 (n 3). The GATT 1947 (General Agreement on Tariffs and Trade, 30 October 1947, 55 UNTS 187) is the predecessor of the GATT 1994 (General Agreement on Tariffs and Trade, 15 April 1994, 1867 UNTS 187), but in a way also of the WTO at large. It was the outcome of the failed negotiations to establish what was then called the International Trade Organization.

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reported on, and cannot be attended by civil society. It is there that true decisions are taken, and the dynamic within the group remains opaque.8 Today, preparatory processes are more open and transparent in the WIPO than in the WTO.9 The latter has remained, partly due to negotiations within trade rounds and the Doha Development Agenda in particular, purely intergovernmental, except for an annual side-event organized for civil society (the WTO Global Forum). The WTO has also remained relatively closed to other international organizations. Observers participate in formal plenary sessions, but not in committee and informal meetings of members. Enhancing transparency within the organization appears increasingly unavoidable and has in fact already been recognized in paragraph 10 of the 2001 Doha Declaration:10 ‘[W]e confirm our collective responsibility to ensure internal transparency and the effective participation of all members. While emphasizing the intergovernmental character of the organization, we are committed to making the WTO’s operations more transparent, including through more effective and prompt dissemination of information, and to improve dialogue with the public’. In the last decade, the most important change towards enhanced transparency has been the development of the WTO website and an almost complete publication of official documents, including those relating to dispute settlement.11 The difference from the times of the GATT, when documents were strictly limited to governments, could not be more radical. Official information on the intellectual property negotiations is – to some extent – also available on the WTO website,12 as well as the work of the TRIPs Council – including minutes of the meetings. It is to be hoped that similar efforts of enhanced inclusiveness of NGOs and academia will be made in preparing decisions under a two-tier 8

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Enhanced transparency, however, has been addressed fairly late and only partially in the International Union for the Protection of New Varieties of Plants (UPOV) – another international organization active in the field of intellectual property rights. The UPOV only announced in 2010 that it will grant ‘observer status’ to civil society and farmers’ organizations at its annual ordinary session. See Thomas Cottier/Marina Foltea, ‘Global Governance in Intellectual Property Protection: Does the Decision-making Forum Matter?’, The WIPO Journal 3, 2012, 139–165. WTO, Ministerial Conference, Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2, 20 November 2001. www.wto.org. For instance in relation to art. 27, see WTO, ‘Background and the Current Situation’, last updated November 2008, available at: www.wto.org.

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post-Doha Agenda of the WTO which is much more focused on sectorial negotiations.13 Concerns regarding the legitimacy of NGO involvement, however, persist. The transparency of NGO actors themselves is often in doubt. It brings us to ‘NGO transparency’.14 Transparency has also been an important issue in WTO dispute settlement. Dispute Settlement Understanding (DSU)15 does not oblige members to proceed in public and with open doors vis-à-vis stakeholders and NGOs. Interested members are entitled to participate as third parties and enjoy a number of procedural rights which are also used in disputes relating to IPRs. Private actors indirectly participate as they provide information to governments that are parties to the dispute. The system is built upon the traditions of diplomatic consultation and arbitration. In principle, it is not open to the public at large. Parties to a dispute, however, can agree to hold meetings with the Appellate Body in public and to have proceedings broadcast live to the benefit of the interested public. Developed countries, operating under domestic transparency standards, have increasingly reverted to this and have made proceedings as well as written submissions open to the public online. This is an important step in aligning the WTO dispute settlement system to the traditions of court proceedings open to the public and the press, and thus allowing for the exercise of public control over what is today the most important branch – the WTO legal process. Within the WIPO, progress on transparency followed a period of strong criticism which, in the end, resulted in the removal of the Director-General in 2009. The following statements expressed concerns at the time and contributed towards enhanced transparency and

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See Thomas Cottier, ‘A Two-tier Approach to WTO Decision-making’, in Debra P. Steger (ed.), Redesigning the World Trade Organization for the Twenty-first Century (Ottawa: Wilfried Laurier University Press, 2010), 43–66; see also Thomas Cottier/ Manfred Elsig (eds.), Governing the World Trade Organization: Past, Present and Beyond the Doha Round (Cambridge University Press, 2011). The Sutherland Report (Peter Sutherland et al. (eds.), The Future of the WTO: Addressing Institutional Challenges in the New Millennium (Geneva: WTO, 2004), 45, para. 199) captures this issue quite well: ‘[a] further criticism of the trend towards increased WTO transparency is that the critics of the current practices – and those lobbying for more access – are often neither especially accountable nor particularly transparent themselves. It is important that the underlying interests of civil society groups be apparent if they are to expect any special rights in the WTO itself or in their dealing with WTO governments’. Understanding on Rules and Procedures Governing the Settlement of Disputes, 15 April 1994, 1869 UNTS 401.

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deliberate efforts to offer a platform for robust debate which takes into account all interests alike. In the absence of adequate oversight, severe problems in internal management have developed, including low staff morale, poor human resources policies, and numerous allegations of financial irregularities and corruption (New 2007). To date, the staffing pool at WIPO has suffered three shortfalls: it is overly technocratic, draws too heavily on the diplomatic community and former industry lobbyists, and is dominated by a pro-[intellectual property] perspective. Hiring practices have been nontransparent, and a revolving door has enabled key staff to move between government [intellectual property] offices, Geneva missions, corporate lobbying firms, and the WIPO Secretariat.16

Criticism reached its peak in 2007, with an open letter from the WIPO staff,17 and finally the forced departure of the WIPO Director. Since then, the WIPO has changed its high-ranking staff. Governance has clearly improved under the leadership of Francis Gurry, Director-General. Transparency is more prominent these days, including where one does not immediately expect it: ‘[t]he new building structure is characterized by a sense of openness and transparency’.18 Whether transparency has also reached out to include all the people in the building is, however, still open to doubt. For instance, one of the measures proposed to reduce the 16

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Jeremy De Beer, Implementing the Development Agenda (Waterloo: Wilfried Laurier University Press, 2007), 47; also ‘Transparency Dimension: WIPO ranks joint last among the ten assessed intergovernmental organisations (IGOs) for their transparency capabilities with a score of 15%. WIPO do not have an information disclosure policy. In their Medium-Term Plan however, they identify transparency as a key organisation goal’ (One World Trust, ‘2006 GAR Accountability Profile – WIPO’, 1 December 2006, available at: http://oneworldtrust.org); and ‘[m]any decisions at WIPO are taken behind closed doors and are not part of the official record. Deals are often brokered during informal consultations, although this is not unusual for international treaty negotiations. However, the lack of transparency over WIPO’s technical assistance programmes is a real problem’. (Global Information Society Watch, Robin Gross, ‘Report on the World Intellectual Property Organisation’, 2007, available at: www.giswatch.org). ‘We have witnessed biased recruitment and promotion procedures, fictitious jobs, political favoritism, pressure tactics and intimidation of the staff and the staff association, virtual reforms, the lack of due process or of the failure to respect democratic principles or internal regulations’, Intellectual Property Watch, ‘Inside Views: Open Letter from Staff to the Director-General of WIPO’, 8 October 2007, available at: www. ip-watch.org. Geneva International Corporation, ‘Interview with Francis Gurry, WIPO’s DirectorGeneral’, 26 September 2011, available at: www.internationalcooperationgeneva.ch; also in Intellectual Property Watch, Catherine Saez, ‘WIPO Begins New Era With A Light, Transparent Office Building’, 26 April 2011, available at: www.ip-watch.org.

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cost of translations is to make available only summary reports of the meetings.19 Criticism subsists, and the WIPO were recently in the news again in relation to the transparency of conference agendas and materials.20 In comparison, the WTO is (a little) less criticized in this regard.21 Like the WIPO, it nevertheless suffers from continued opacity in particular regarding the informal roles of the secretariat in negotiations and dispute settlement. Often, criticism of non-transparency is also linked to the democratic legitimacy of the organization and its set of laws. Frustration is expressed especially in relation to the lack of transparency in bilateral and small-group negotiation meetings,22 while the international legal process is also said to be (ab)used so as to circumvent domestic political debate on the matters at stake.23

2.1.2

The Other Scenario: The Anti-counterfeiting Trade Agreement Negotiations Chronic difficulties limiting further progress both in the WIPO and the WTO on intellectual property protection, particularly as regards 19

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WIPO, Program and Budget Committee, Policy on Languages at the WIPO, WO/PBC/ 15/9, 26 July 2010. Intellectual Property Watch, William New, ‘WIPO Defends Involvement in IP Enforcement Meeting in the Philippines’, 24 October 2011, available at: www.ipwatch.org. In the same report where the WIPO scored 15% for transparency, the WTO scored 33%. One World Trust, ‘2006 GAR Accountability Profile – WTO’, 1 December 2006, available at: http://oneworldtrust.org. Third World Network, Kanaga Raja, ‘WTO Members Voice “Frustration” over Lack of Transparency in Talks’, 3 November 2009, available at: http://twnside.org.sg. Ian Hosein, ‘International Relations Theories and the Regulation of International Dataflows: Policy Laundering and other International Policy Dynamics’, presented at the 45th International Studies Association Convention (17–20 March 2004). Problems of transparency in housekeeping also exist in the European Patent Organisation. For instance, the election process of the President of the EPO has been harshly criticized. It was pointed at as being opaque, especially when compared to the US procedure in this regard. (Very affirmative in this regard, see Joff Wild, ‘The USPTO’s Transparency Puts Europe to Shame’, 17 November 2009, available at: www.iam-magazine.com). The appointment of the Director of the United States Patent and Trademarks Office (USPTO) was reported to be open and clearly motivated. The selected candidate there had to appear before the US Senate Judiciary Committee, whereas it is its Administrative Council deciding on who will be leading the EPO (with a qualified majority of threequarters of the votes of the member States). The European procedure is moreover lengthy, and little information is released. Hearsay dominates. On the last occasion, it was, for example, long unclear why no agreement was reached to choose one of the candidates.

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enforcement, induced a number of high-technology-dependent countries to embark on negotiations establishing a higher standard of enforcement. These negotiations, led by the US and the EU, were conducted outside the realm of international organizations, on a plurilateral basis and at the exclusion of emerging economies, in particular Brazil, China and India. The agreement, concluded in 2010, is likely to be used as a model for TRIPs along with provisions for future bilateral trade agreements; yet the negotiation process showed substantial transparency flaws. As a result, the agreement today lacks the required trust and is heavily contested. The Anti-counterfeiting Trade Agreement (ACTA) negotiations process has been heavily debated in past years.24 The most vigorously criticized point was quite simply the fact that no – official – draft of the negotiated text was made available for a long time. Also, the meeting dates, the venues and agendas were kept secret.25 The first draft texts were leaked – prominently – by WikiLeaks. Before, hearsay ruled on the matter. Eventually, an official draft was made available. Negotiators feared public and civil-society pressures would alter the text during the negotiations. The ACTA agreement was essentially negotiated among developed, like-minded countries. Countries deficient in enforcing IPRs, in particular emerging economies, were not included in the negotiations. The ACTA was conceived rather as a benchmark to which countries may legitimately refer while negotiating future bilateral or regional trade agreements. It also sidestepped civil society, which was concerned by the domestic implications of ACTA in industrialized countries. In an open letter, a number of prominent NGOs therefore urged the release of the negotiating draft, saying that the lack of transparency in negotiation of an agreement that would affect the fundamental rights of citizens of the world is fundamentally undemocratic.26 The European Union – one of the negotiating parties – later issued a counterstatement, saying that ‘[f]or reasons of efficiency, it is only natural that intergovernmental negotiations dealing with issues that 24

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For instance David Levine, ‘Transparency Soup: The ACTA Negotiating Process and “Black Box” Lawmaking’, Program on Information Justice and Intellectual Property – Research Paper No. 18 (2011). Michael Geist, ‘ACTA’s State of Play: Looking beyond Transparency’, American University International Law Review 26 (2010), 543–558, 546. ‘Re: Anti-counterfeiting Trade Agreement Negotiations (Open Letter by Civil Society)’, 15 September 2008, available at: www.wired.com.

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have an economic impact, do not take place in public and that negotiators are bound by a certain level of discretion’.27 It is important to assess the different functions of transparency in the process of negotiations. One aspect is inclusiveness. Transparency requires the inclusion of all stakeholders and governments affected by the subject matter, in particular those who at the end of the day should be convinced to comply with the achieved results. Transparency as inclusiveness was clearly not achieved in ACTA negotiations. The same is not true of work in WTO and WIPO, where all members are entitled to participate. This does not exclude building consensus by concentric circles, starting informally in small groups which gradually expand. A second function of transparency relates to the format of negotiations. They either take place in public or behind closed doors. Transparency cannot require publicity at all stages. All negotiations require stages behind closed doors, allowing for compromise without losing face. Undisclosed negotiations are not incompatible with the principle of transparency. Rather, what is called for is sequencing of public and undisclosed stages which overall provide full disclosure of information and the building of mutual trust among all affected actors. The ACTA example demonstrates the proposition that lack of transparency leads to a lack of trust and, in all likelihood, to the failure of the agreement. This process looks very much like that which led to the failure of the OECD Multilateral Agreement on Investment.28 It also shows that the openness, or rather the inclusiveness, of international organizations can also work against the aims of transparency and multilateralism. It can lead to plurilateral approaches of the ACTA kind, or even the unilateral enforcement of domestically established standards.29 Yet, the lesson to be learnt here cannot be that the multilateral level must water down its transparency policies. It rather shows a need for greater awareness at all policy levels of the necessities and implications of transparency – a matter of political culture. 27

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European Commission, ‘The Anti-counterfeiting Trade Agreement – Factsheet’, updated November 2008, available at: http://trade.ec.europa.eu/doclib/docs/2012/jan uary/tradoc_149003.pdf, 4. A website hosted by the EU is now exclusively devoted to defending the Treaty on transparency issues: European Commission, ‘Transparency: ACTA Is Not a “Secret” Agreement’, available at: http://ec.europa.eu. At present, a consent procedure is pending before the European Parliament. Riyaz Dattu, ‘Journey from Havana to Paris: The Fifty-year Quest for the Elusive Multilateral Agreement on Investment’, Fordham International Law Journal 24 (2001), 275–308. This in fact is likely to happen if the ACTA treaty fails to be ratified.

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2.2 International Intellectual Property Law and Transparency at the Domestic Level The shortcomings displayed above notwithstanding, international organizations and treaties can operate as strong transparency-inducing factors at the domestic level, including in the implementation of international obligations and in promoting and ensuring access to intellectual property-related documents.

2.2.1 The Implementation of International Obligations In the field of intellectual property rights, the WTO TRIPs Agreement for instance has a number of built-in reporting obligations in relation to the implementation of its provisions for the domestic laws of the member States.30 Transparency obligations are also to be found in the context of technology transfer to least-developed countries.31 Here, member States have to report on how and which measures have been taken by developing countries to incentivize technology transfer to least-developed countries – as requested by article 66(2) of the TRIPs Agreement. What members have notified exactly in this context can be verified online.32 Furthermore, the TRIPs Agreement lays down a specific obligation concerning domestic transparency. Article 63 of the TRIPs Agreement builds upon the tradition of article X of GATT. The provision reflects a policy of making sure that pertinent rules applicable to intellectual property standards and enforcement are made public to those affected. These obligations in the Wilsonian tradition also entail the publication of leading cases and administrative rulings, a requirement still frequently ignored. Notification of domestic laws and regulations to the WTO supports the aim within the WIPO to publish all 30

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Furthermore, there is a WTO ‘Member’s Transparency Toolkit’, available at: www.wto. org. TRIPs Agreement, 1994 (n 3), art. 66(2) in conjunction with WTO, Council for Traderelated Aspects of Intellectual Property Rights, Implementation of Article 66.2 of the TRIPs Agreement: Decision of the Council for TRIPs of 19 February 2003, IP/C/28, 20 February 2003, para. 1: ‘[d]eveloped country Members shall submit annually reports on actions taken or planned in pursuance of their commitments under Article 66.2. To this end, they shall provide new detailed reports every third year and, in the intervening years, provide updates to their most recent reports. These reports shall be submitted prior to the last Council meeting scheduled for the year in question’. Others doubt the ‘transparency of the transparency provision,’ however: ‘[a]s such, it is not exactly clear what is required for members to comply with this clause’: Thomas E. Volper, ‘TRIPs Enforcement in China, A Case for Judicial Enforcement’, Brooklyn Journal of International Law 33 (2008), 309–346, 318–319. At WTO, ‘Transparency Toolkit’ (n 30).

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pertinent laws of its members on an extensive database.33 A common WTO–WIPO portal has been established to this end. The right to obtain information on domestic legal developments under article 63(3) is widely used in the WTO and allows for taking up issues and problems short of triggering the WTO dispute settlement.34 Outside of the TRIPs Agreement, the Trade Policy Review Mechanism of the WTO is the second mainstay securing transparency on domestic intellectual property protection and international monitoring.35 The Trade Policy Review Mechanism allows the flagging up of existing difficulties in implementing agreements short of dispute settlement, and providing momentum to address these problems domestically in a process of inter-agency consultation. Both article 63 of the TRIPs Agreement and the Trade Policy Review Mechanism are good examples of multi-layered governance and compensatory constitutionalism,36 as domestic law often does not pay sufficient attention to transparency of rules and the administration of justice, and calls for preventive and remedial action to the benefit of foreign right holders and investors.

2.2.2

Transparency in Granting and Monitoring Intellectual Property Rights Applications for patents are published in most patent systems, usually a number of months after the initiation of the process. This is to enable third-party participation at an early stage of the procedure.37 National 33 34

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WIPO, ‘WIPO Lex’, available at: www.wipo.int. It is fair to say that not all WTO members can be called transparent – or at least not equally transparent – in intellectual property matters. Levels strongly differ: ‘China’s judicial decision-making remains opaque, as few written opinions are published, and even fewer reach the public unaltered by China’s highest court. If the United States were to challenge China, in the DSB on Article 63(1) transparency, a reasonable interpretation and application of that provision should find China not in conformity’ (Volper, ‘TRIPs Enforcement in China’, 2008 (n 31), 313); see WTO, China – Measures Affecting the Protection and Enforcement of Intellectual Property Rights, Report of the Panel of 26 January 2009, WT/DS362/R. See WTO, ‘Trade Policy Reviews’, available at: www.wto.org. See Anne Peters, ‘Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures’, Leiden Journal of International Law 19 (2006), 579–610. The EPO, for instance, allows third-party opposition to the granting of patents (Convention on the Grant of European Patents (European Patent Convention), 5 October 1973, 1065 UNTS 199, arts. 99–105). Before the grant, after the publication of the patent application, what is called an ‘observation’ can be made by ‘any person’. Here,

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patent offices around the world are, however, not always in a position to provide full access and transparency. Take, for example, the Israeli patent system, and notice that its online search facility is fairly limited. There is an online ‘patent database’, true; but it is far from being transparent or efficient. It publishes applications, but not all: there is a category called ‘non-published applications for security considerations’. The same is true for the United States. Furthermore, for applications dated before the year 2000, only abstracts are available.38 This example is used to show that the registration and data collections operated by international organizations can have an important complementary function. Indeed, for many developing countries, these data collections remain the primary source of information, readily accessible today thanks to the worldwide net. The WIPO is a strong enabler of domestic transparency in this context. For instance, it offers an online accessible patent database called ‘Patentscope’.39 While searches in the Israeli online database were difficult, information appears more easily accessible through WIPO’s Patentscope – including for Israel. The WIPO furthermore ensures the international accessibility of its member countries’ laws, via the WIPO Lex system.40 The information here includes countries’ intellectual property laws and relevant amendments; and also their treaty membership in this area and the related implementation decisions. It increasingly includes also relevant bilateral treaties in this area. Similarly, the Patent Cooperation Treaty Case Law database distributes domestic decisions relating to the Patent Cooperation Treaty, by article and rule. It covers the jurisdictions of Canada, the European Patent Organization, the United Kingdom and the United States.41 The European Patent Office (EPO), similarly, publishes a complete set of documents online, informing a potential appellant of the decisions

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one remains outside of the procedure however, in the sense that one does not become as such a party to the proceedings. Yet, it allows one to submit prior art documentation and to bring arguments against or in favour of the grant; arguments that must be heard. They can be submitted online, via the European Patent Register. ‘The Patent Office database contains updated information on Israeli patent applications and allows searches according to various criteria. For non-published applications, access is possible only to bibliographic data due to security considerations. Complete documentation is available for all accepted applications. Bibliographic data only is available for applications which have not yet been accepted. The database currently includes abstracts for all accepted applications for the years 1970–2000’, Israel Patent Office, ‘Welcome to Israel Patent Office Database’, available at: www.ilpatsearch.justice.gov.il. WIPO, ‘Patentscope’, available at: www.wipo.int. 40 WIPO, ‘WIPO Lex’ (n 33). See WIPO, ‘PCT Resources’, available at: www.wipo.int.

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pending.42 Information available online here includes all possible documents. The bulk of it is administrative, but it also includes for instance communications between the Office and the parties, and vice versa. Online file inspection is thus assured. Via ‘Espacenet’, further information relating to non-European patents is available in a similarly complete way.43 Also, the US Data Visualization Center and its Patent Dashboard must be mentioned in this context. This takes these matters one step further to statistically visualize the operation of the United States Patent and Trademarks Office (USPTO).44 The most obvious result of these transparency efforts is that competitors and NGOs are more actively involved in the granting of patents.45 Greenpeace, for instance, has made active use of participatory rights as guaranteed under the European Patent Convention, and has become a very prominent actor in attacking biotechnology patents.46 Transparency has therefore established an improved balance between the diverging interests at stake in the process of granting exclusive rights. 42

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European Patent Office, ‘Board of Appeal Decisions Database’, available at: www.epo. org; and European Patent Office, ‘European Patent Register’, available at: www.epo.org. The EPO website also explains how to use the search tools and access patent information online. The European Patent Register delivers procedural information on applications specifically. It allows one to search by number, date and/or keywords and gives information on the legal status of the application. See the European Patent Office, ‘Patent Information Tour’, available at: www.epo.org. See www.espacenet.com. USPTO, ‘Data Visualization Center – Your Window to the USPTO: Patents Dashboard’, available at: www.uspto.gov; the European equivalent is the European Patent Office, ‘European Patents and Patent Applications – 2011 Statistics’, available at: www.epo.org. European Patent Convention, 1973 (n 37). Greenpeace was at the root, for instance, of these decisions: Boards of Appeal (European Patent Office), Plant Cells Resistant to Glutamine Synthetase Inhibitors, Made by Genetic Engineering, Decision of 21 February 1995, Case No. T 0356/93; Enlarged Board of Appeal (European Patent Office), Transgenic Plant/NOVARTIS II, Decision of 20 December 1999, Case No. G1/98; Boards of Appeal (European Patent Office), Phosphinothricin-Resistenzgen/BAYER, Decision of 15 June 2004, Case No. T 0475/01; Boards of Appeal (European Patent Office), Herbicide Resistant Plants/MONSANTO, Decision of 6 April 2005, Case No. T 0179/01; Boards of Appeal (European Patent Office), Soybean Transformation/MONSANTO, Decision of 3 May 2007, Case No. T 1165/03; Boards of Appeal (European Patent Office), Breast and Ovarian Cancer/ UNIVERSITY OF UTAH, Decision of 27 September 2007, Case No. T 1213/05; Boards of Appeal (European Patent Office), Vitrification of Cells/K. FOREST, Decision of 23 March 2010, Case No. T 0506/07; Boards of Appeal (European Patent Office), Mutation/ UNIVERSITY OF UTAH, Decision of 13 November 2008, Case No. T 0666/05; Boards of Appeal (European Patent Office), Oil from Seeds/CONSEJO SUPERIOR, Decision of 12 May 2010, Case No. T 1854/07.

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3. 3.1

Transparency and Patent Law: The Innovation Perspective Transparency, Access to Knowledge and Exclusive Rights

Transparency and intellectual property rights meet at one very crucial point: access to knowledge and innovation. Although this neither covers the issue of transparency in legal processes, strictly speaking, nor the broader issue of access to information, access to knowledge is the most interesting and specific aspect of intellectual property protection when discussing transparency issues. It brings us into the realm of corporate social responsibility – corporate transparency47 – and into the domain of the larger debate on innovation and knowledge transfer. In this area transparency is only a choice where secrets enjoy legal protection and where the question of transparency is subordinate to whether or not it benefits progress in innovation. Patents disclose information on innovative products and methods; but only with the aim of fostering advancement in innovation. The other option available is secrecy. Both are given a degree of legal protection, and both appear legitimate. In the context of intellectual property and especially in patent law, the right and appropriate level of transparency seems to be that in which innovation is fostered to the maximum and where competitiveness is optimally assured. At the heart of this debate lies the nature of knowledge as a public good. This means that knowledge is non-rival and non-excludable. Consumption by one individual does not detract from the consumption of another; and once it is released one cannot exclude others from enjoying the information. Of course, to some extent knowledge is only an imperfect public good. Barriers do exist, and most often people are in fact excluded. Nevertheless, the main reason for patent protection lies in its nature as a public good. If knowledge were left in its ‘public good’ state, then only knowledge at production cost zero would be produced. Patents intervene here – just as subsidies might, for instance – and create an artificial access barrier to boost the production of knowledge; while simultaneously also ensuring the disclosure of the (patented) innovative knowledge.48 47

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We enter the realm of – for instance – the forced disclosure of chemical compositions or of the ingredients of food products in the context of consumer protection. See, on corporate transparency, Robert Bushman/Joseph Piotroski/Abi Smith, ‘What Determines Corporate Transparency?’, Journal of Accounting Research 42 (2004), 207–252. Joseph Stiglitz, ‘Economic Foundations of Intellectual Property Rights’, Duke Law Journal 57 (2008), 1693–1724.

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The system thus aims at disclosure. Whether this disclosure is transparent is, however, yet another question – addressed below under the heading ‘patent quality’. Furthermore, the question arises as to how much information in fact should be available for the sake of innovation? It has been famously said that the patent system, in spite of its aim, merely ‘does no harm’.49 Hence the questions: is a fully transparent innovation process beneficial for global progress in innovative research? Is it worth the monopoly right that is given in return? One can see a parallel to the WikiLeaks debate here: how much transparency is actually advantageous? At what stage does the release of confidential information become a threat to the accepted, larger aim of bringing about innovation? The patent system, in this context, takes a middle-path approach between theories of complete and free disclosure (e.g. common or open innovation)50 and total secrecy (undisclosed information or trade secret protection). The protection of undisclosed information or trade secrets is recognized at the international level, under article 39 of the WTO TRIPs Agreement.51 This provision links the protection of trade secrets to the notion of unfair competition and sets minimum standards under which ‘undisclosed information’ must be protected. There must be a secret; that secret must be lawfully within the control of the person claiming it; commercial value must be derived from it; and it must have been subject to reasonable steps to keep it secret. Protection is then to be guaranteed against disclosure, acquisition or use by third parties, without consent and in a manner contrary to honest commercial practice. This latter standard includes at least the breach of contract, the breach of confidence and inducement to breach. It thus includes the acquisition of undisclosed data by third parties who knew or were grossly negligent in not knowing that behaviour contrary to honest commercial practice was involved. Examples of the latter are bribery or commercial 49

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Fritz Machlup, An Economic Review of the Patent System: Study of the Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary, United States Senate, Eighty-fifth Congress, Second Session Pursuant to S. Res. 236 – Study No. 15 (Washington DC: Government Printing Office, 1958). See for instance Henri W. Chesbrough, Open Innovation: The New Imperative for Creating and Profiting from Technology (Boston, Mass.: Harvard Business School Press, 2003). TRIPs Agreement, 1994 (n 3); see generally Ingo Meitinger, Der Schutz von Geschäftsgeheimnissen im globalen und regionalen Wirtschaftsrecht: Stand und mögliche Entwicklung der Rechtsharmonisierung, Studies in Global Economic Law, vol. 4 (Bern: Peter Lang, 2001).

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espionage. There is thus a certain balance here on which secrets are to be protected, and when. Arguably, she who manages to find out the secret by reverse engineering does not behave contrary to honest commercial practice. Reverse engineering by fair means is allowed. However, even if not guaranteed legal protection, companies remain free to keep information secret if they can. This is no different from innovative information. Transparency is only a choice in this context. Private actors often appear to rely on trade secrets instead of patent protection. This is an increasing phenomenon, for instance, in relation to nanotechnology.52 Trade secrets are furthermore increasingly being licensed like proper intellectual property rights,53 and thus the question arises of whether this is an ‘inevitable trend toward more transparency rather than less’.54 Does it mean that less transparency in fact is considered to bring about a better framework for innovation, or does this only reveal a short-sighted approach by individual private actors who do not take into account the larger view of global innovation? Do firms use trade secrets because they prefer to keep a competitive and innovative edge in that way? Clear answers are too much to expect. Innovation is the aim, and the question of using transparency may turn into a utilitarian choice. Transparency can thus be a tool for achieving progress in global innovation, but one that can hardly be measured. The questions arising in this context are hard to answer, and it is impossible for lawyers to do so. Also, innovation economists are inconclusive. Authors claim that there is an ‘optimum level beyond which increasing transparency lowers profits’;55 although corporate transparency should decrease the asymmetries of information and thus, generally, lower transaction costs.56 Many elements play a role in measuring innovation, and many of them strongly differ from one local context to another. If one looks at foreign direct investment – often the first step in developing an innovation climate in developing countries – it appears 52

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Paul J. Sutton, ‘Nanotechnology License Pitfalls’, Journal of Intellectual Property and Practice 4 (2009), 176–180. John Hull, ‘Trade Secret Licensing: The Art of the Possible’, Journal of Intellectual Property and Practice 4 (2009), 203–227. Richard W. Oliver, What is Transparency? (London: McGraw-Hill, 2004). In the context of individual companies and their relation to their CEO, see Benjamin Hermalin/Michael Weisbach, ‘Transparency and Corporate Governance’, January 2007, available at: www.nber.org. Christian Leuz/Robert Verrecchia, ‘The Economic Consequences of Increased Disclosure’, Journal of Accounting Research, Supplement: Studies on Accounting Information and the Economics of the Firm 38 (2000), 91–124.

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that ‘the degree of corporate transparency (as proxied by creditor rights and dept-equity ratio) is negatively correlated with FDI [foreign direct investment] inflows’.57 Perhaps it is the case that a choice has not yet been made. Disclosure of innovative information is nothing but an option; secrecy is simply another. Both appear on an equal footing. A mixture of both is common in business strategies.

3.2

Transparency within Patent Information

Whereas it is clear that the aim of the patent system is to incentivize the creation of innovative information while assuring its disclosure, quite another question is to assess whether this is done successfully and in a transparent manner. We have highlighted above that patent offices make patent information available online. We now move to address yet another question: that of the quality of the information disclosed. How transparent, once accessible, is patent information today? Whereas the above-mentioned ‘classical’ issues of transparency could be called ‘passive transparency’ – i.e. the simple availability of information – here we are discussing ‘active transparency’ – i.e. how to make sure that the available information is complete and useful.58 After all, the Oxford dictionary defines ‘transparent’ as ‘allowing light to pass through so that bodies can be distinctly seen’.59 Now, does the mere access to innovative information necessarily allow the light to pass through? The available information may not be tantamount to knowledge. It may take more for that. Provided that the choice discussed in the previous section has already been made and that the information is in the public domain, the question whether transparency is in fact good or bad for innovation is no longer at stake. The twenty-year patent has been granted and so the return from it – the disclosure of the inventions – must be maximally transparent.60 57

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Ashoka Mody/Assam Razin/Efraim Sadka, ‘The Role of Information in Driving FDI Flows: Host Country Transparency and Source Country Specialisation’, April 2003, available at: www.nber.org. In this context, see Peter Drahos, The Global Governance of Knowledge – Patent Offices and their Clients (Cambridge University Press, 2010). Della Thompson (ed.), Concise Oxford English Dictionary (Oxford University Press, 9th edn, 1995), 1483. Benoit Battistelli, ‘President Battistelli’s Speech at the EPO Patent Information Conference 2011’, 18–20 October 2011, available at: www.epo.org.

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Whereas in the previous sections transparency of public institutions and corporate transparency were discussed separately, in this section we are dealing with aspects of both. Transparency obligations rest with the patent offices, but also with the patent applicants, who have to act in good faith themselves. Much of the responsibility is being transferred to third-party action anyway, since many patent offices do not conduct active novelty searches. The quality of patent information, and its completeness, are often called into question: ‘[t]he ability of developing and least-developed countries to procure affordable generic medicines continues to be hampered by a lack of transparency in patent information’.61 ‘Even for the EPO one would say that the transparency of the system from a user point of view is not as good as it could be’.62 It is evident that the operation of patent information systems requires skill and sophistication. Large companies are able to provide the expertise in-house; small and medium enterprises depend upon assistance which specialized services in patent offices and patent attorneys need to provide. All this is related to costs. The complexity of these systems still results in a lack of patent landscaping, and thus a waste of resources by inventors and developers of technology. The question of transparency must be seen in a wider context. Many issues arise here. We look at only a few of them here, focusing on specific, legal issues of transparency in the field of patent law, in particular instances in which transparency failures are due to the flaws inherent in the patent regime itself, rather than errors made by applicants.63

3.2.1 Transparency and Patentability Requirements The fulfilment of patentability requirements is essential to the quality of a patent, and thus also to that of the information released into the public domain. Let us take the example of novelty (one of the patentability criteria). To get a patent, your invention must contribute 61

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Tahir Amin, ‘Searching for Transparency: Improving Patent Information to Increase Access to Medicines’, International Centre for Trade and Sustainable Development – Bridges Review 14(4) (2010), 21–22. Peter Drahos, ‘Detailed Interviews: Professor Peter Drahos’, in European Patent Office, Interviews for the Future (EPO 2007), 405–411. These can be seen in an abuse of rights context – the abuse being rooted in a deliberate opacity in the information disclosed during patent procedures. See in this relation Michelangelo Temmerman, ‘The Legal Notion of Abuse of Patent Rights’, May 2011, available at: www.nccr-trade.org.

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something new to the state of the art. This touches upon the very essence of the patent system: rewarding and incentivising progress. However, many patent offices do not bother to check whether this criterion is being fulfilled. Searches are too expensive. National offices are rarely confronted with a ‘direct’ application, and rely on the reports made on the matter during the Patent Cooperation Treaty or ‘EPO’ phase. The patent application does not receive a domestic assessment of the novelty requirement. It gets a stamp. A stamp saying: you get a patent until a third party manages to challenge its validity. To the public, the patent granted will, however, bear the presumption of covering a novel invention, which can be misleading. This clearly boils down to a transparency issue: a patent is not transparent, and legal security is not enabled, if the criteria for the grant have not been checked.64 Transparency here means clarity about the fulfilment of requirements in the pre-grant phase.65

3.2.2 Transparency and Legal Definitions Another issue relates to the way in which certain definitions are being made and used. Arguably, in order to be transparent, definitions must be clear. This also implies that they must be predictable and well-motivated. Although this brings us again somewhat into the realm of the wider notions of ‘good governance’ and ‘due process’, transparency – i.e. ‘allowing light to pass through’ – is at stake here as well. Definitions are not transparent when their motivation is opaque. One can give an example from the biotechnology field. The European Patent Convention excludes ‘animal and plant varieties’ from patentable subject matter.66 However, in case law the decision was taken that this only applies to the taxonomical rank of ‘variety’, and thus not to plants and animals in general.67 This today is part of the ‘rules of interpretation’ of the Convention.68 Indeed, this is a strange construction. The exclusion has 64

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In this sense, see European Patent Office, ‘Transparent Criteria for Strong Patents?’, available at: www.epo.org. Peer-to-patent initiatives, including third parties ints the search and criteria-check fits into this framework; granting and moving matters to third-party challengers does not. See European Patent Convention, 1973 (n 37), art. 52(b), which reads: ‘European patents shall not be granted in respect of: (b) plant or animal varieties or essentially biological processes for the production of plants or animals; this provision does not apply to microbiological processes or the products thereof’. Enlarged Board of Appeal (European Patent Office), Transgenic Plant/NOVARTIS II (n 46). Implementing Regulations to the Convention on the Grant of European Patents, 5 October 1973 as last amended by Decision of the Administrative Council of the European Patent Organisation of 9 December 2004, rule 23c: ‘Biotechnological inventions shall also be

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been justified on the basis of an interpretation by analogy drawn from cases concerning plant patentability, ‘in the interest of legal certainty’.69 However, the specific background of animal genetics appears not to have been duly taken into account. There is no sui generis system for the intellectual property protection of animal varieties – a reason invoked in relation to plants – and the taxonomical rank of animal ‘variety’ actually does not exist in animal taxonomy. Furthermore, the Convention uses a different term in each of its three official versions (‘variety’, ‘species’, and ‘race’). Finally, if this same reasoning were to be applied to the TRIPs Agreement,70 then only the taxonomical level of ‘animals’ would be excludable from patent protection and animal varieties in fact would have to be patentable. Applying the EPO logic to international law would thus mean that the European Patent Convention breaches it.

3.2.3 Transparency and Biopiracy Still in the realm of biotechnology, a more classical question of transparency in patent law comes up. The context is that of ‘biopiracy’ which consists of taking biological material in biodiversity-rich countries (usually situated in the southern hemisphere), to be bioengineered with technologies (usually situated in the northern hemisphere) and then to be protected by intellectual property rights in, again, ‘northern’ hands. The benefits of these developments, both in terms of financial benefits and access to the new inventions, are often not shared with the countries or indigenous groups in whose territories the initial material originates. This is so despite the Convention on Biodiversity71 establishing the principle that its member States must ensure that patents and other intellectual property rights do not run counter to the objectives of the Convention (access, and benefit-sharing).72 Furthermore, the taking of the material often goes along with the taking of the (traditional) knowledge relating to it – knowledge which these communities have developed over generations.73 The mechanism,

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patentable if they concern: (. . .) (b) plants or animals if the technical feasibility of the invention is not confined to a particular plant or animal variety’. See also Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the Legal Protection of Biotechnological Inventions, 30 July 1998, OJ 1998 No. L213/13, art. 4(1)(a). Technical Board of Appeal (European Patent Office), Transgenic Animals/HARVARD, Decision of 6 July 2004, Case No. T 0315/03. See TRIPs Agreement, 1994 (n 3), art. 27. Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79. Ibid., art. 16(5). On the issue of so-called traditional knowledge and its legal issues, see Susette BiberKlemm/Thomas Cottier (eds.), Rights to Plant Genetic Resources and Traditional Knowledge: Basic Issues and Perspectives (Oxfordshire: Cabi Publishing, 2006).

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especially in relation to patent law, becomes particularly problematic when the technical intervention appears marginal. Today, the original source of the genetic material on the basis of a patentable invention must not be disclosed when applying for a patent. The debate boils down to the implementation of a so-called ‘disclosure of source’ obligation (in relation to both the biological material and the traditional knowledge associated with it). This is essentially a transparency question. It is currently on the negotiating table of the WTO Doha Development Round, and thus of the TRIPs Agreement. The idea is mainly to use the patent offices as a ‘checkpoint’ for access and benefit-sharing as regulated under the Convention on Biodiversity by the principle of prior informed consent, as well as to avoid rewarding biopiracy by granting intellectual property rights. Disclosure of source would also enable a better novelty and inventiveness test in relation to biotechnology inventions, and contribute to transparency in patent law: ‘[p]atent applicants should be required to disclose the “source” of “genetic resources” and “traditional knowledge related to genetic resources” in patent applications. The requirement should only apply if patent applicants do have information available on the source; otherwise, they should be required to declare that the source is unknown to them’.74 Transparency thus becomes a prerequisite to bring about proper and equitable benefit-sharing in the combined use of traditional knowledge and modern technology. It means, in part, realizing distributive justice; yet only few patent laws have incorporated a disclosure of source requirement so far.

4. Conclusions Transparency in international intellectual property protection shares common traits with other fields of international law and organization. Norms and procedures primarily seek to ensure the appropriate implementation of intellectual property rules and standards in domestic law. Mechanisms of transparency, in particular publication, review and reporting, serve such a purpose. The WIPO and the WTO thus assume important functions in securing and complementing transparency at home, while allowing for the interconnection of different domestic 74

Martin Girsberger, ‘Transparency Measures under Patent Law Regarding Genetic Resources and Traditional Knowledge’, Journal of World Intellectual Property 7 (2004), 451–489, 481.

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systems by means of international instruments. Intellectual property protection in international law is thus a prime example of multilevel governance and compensatory constitutionalism. The problems of transparency encountered within international organizations and negotiating processes are not unique to intellectual property rights but shared with other areas of diplomacy. The shift from behind-the-door diplomacy to open and transparent processes of lawmaking and accountable processes within international organizations amounts to an important increase of transparency which needs to be reconcited with efficiency requirements. The need for achieving results does not inherently encourage transparency at all stages of the process. Behind the door work remains important for success. The experience of ACTA, however, shows that transparency calls for inclusiveness in the process. Where it falls short, negotiations are likely to fail. Intellectual property rights offer particular insights into the role of transparency, particularly as regards privately generated information and knowledge. The law allows for both strategies. Exclusive patent rights are granted in return to disclosure of information to the competitors and the public at large. At the same time, operators are entitled to work with trade secrets, keeping the information undisclosed. Innovation may be promoted by using one or the other, or a combination of both. The protection of trade secrets, however, shows that transparency in the public sector and in the private sector cannot be subject to similar criteria. Good governance in government and international organizations must be distinguished from good governance in the private sector. Corporate social responsibility needs to develop its own rules on transparency. The inherent vagueness and ambiguity of IPR standards, in particular in the area of patents, reduces transparency due to lack of precision and the predictability of relevant legal norms. The problem is inherent to patents that are strongly dependent upon a case-by-case analysis and determination. There is nothing wrong with this. Case-by-case determination is inherent in the legal process in many fields. Structurally, however, additional safeguards are needed, and they may be found in the procedural rights and obligations of those affected. Party and thirdparty participation in the process of granting patents thus provides the foundation of the system, in terms of guaranteeing transparency, and thus legitimacy, for both process and outcome.

PART III International Human Rights Law

9 The Human Right to Information and Transparency jonathan klaaren

1. Introduction One way to explore the place of the right to information in international law is to start by noting its understanding in a globally significant national jurisdiction, that of South Africa. Indeed, the inauguration of the right of access to information in the South African legal system itself took place at the intersection of international and national law. In its Certification case, the Constitutional Court of South Africa examined the position of the right of access to information and noted that ‘freedom of information [was] not a “universally accepted fundamental human right”, but is directed at promoting good government’. This was significant for this judicial decision on the validity of South Africa’s new constitution, because the right was suspended for three years and ‘[h]ad freedom of information indeed been a fundamental human right or one of the basic structural requirements for the new dispensation, its suspension would have been inconsistent with the character of the state envisaged by the drafters’.1 More than ten years later, in Brümmer v. Minister for Social Development and Others,2 the Constitutional Court of South Africa

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Constitutional Court of South Africa, Certification of the Constitution of the Republic of South Africa, 1996, Judgment of 6 September 1996, Case CCT 23/96, para. 85; Constitutional Court of South Africa, Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996, Judgment of 4 December 1996, Case CCT 37/96. Constitutional Court of South Africa, Brümmer v. Minister for Social Development and Others, Judgment of 13 August 2009, Case CCT 25/09, [2009] ZACC 21, paras. 62–63; see also Constitutional Court of South Africa, President of the Republic of South Africa v. M & G Media Limited, Judgment of 29 November 2011, Case CCT 03/11, [2011] ZACC 32.

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further explicated its understanding of the importance of the right of access to information: The importance of this right (. . .) in a country which is founded on values of accountability, responsiveness and openness, cannot be gainsaid. To give effect to these founding values, the public must have access to information held by the State. Indeed, one of the basic values and principles governing public administration is transparency. And the Constitution demands that transparency ‘must be fostered by providing the public with timely, accessible and accurate information.’ Apart from this, access to information is fundamental to the realisation of the rights guaranteed in the Bill of Rights. For example, access to information is crucial to the right to freedom of expression which includes freedom of the press and other media and freedom to receive or impart information or ideas. (. . .) Access to information is crucial to accurate reporting and thus to imparting accurate information to the public.

As is clear from this passage, the judges of the Constitutional Court view and analyze the right to information within a framework of values that includes the value of transparency and places the principle of transparency at the core of this national constitution. The argument for the recognition of the right to information in international law has continued to strengthen since the Constitutional Court’s Certification decision. This chapter examines the human right to information in international law and makes the argument that this human right is a significant vehicle for promoting transparency. In section 2, it makes some observations concerning the conceptual foundations of the right to information and the right’s relationship to the broader concept of transparency. Section 3 will note the current state of the human right to information in international law, doing so from an African perspective. The final section presents a set of questions for further consideration (noting some linkages with South African postapartheid jurisprudence) as well as some concluding observations, organized in conceptual terms based on the right of information.

Both of these cases deal directly with the interpretation of South Africa’s freedom of information law, the Promotion of Access to Information Act (PAIA). Iain Currie/ Jonathan Klaaren, The Promotion of Access to Information Act Commentary (Westlake: SiberInk, 2002). For an excellent examination of the PAIA’s successes, failures and challenges, see Kate Allan (ed.), Papers Wars: Access to Information in South Africa (Wits University Press, 2009).

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2. The Relationship between the Human Right to Information and Transparency One way of understanding the relationship between the human right to information and transparency is to see the human right to information as a vehicle for increasing a certain amount of transparency or (stated somewhat differently) as a vehicle for furthering the ends or some of the ends contained within the concept of transparency. Another way of understanding the relationship between the two concepts would be to explore the logical relationship: is the right to information necessary for transparency, and is it sufficient for transparency? For the purposes of this chapter, the right to information is assumed to be neither necessary nor sufficient for transparency.3 Despite the explosion of transparency literature, there appears to be no dominant conceptual definition of transparency. For instance, in the chapters of the current volume, there are a variety of definitions, an intended consequence of the welcome approach of the editors. In my view, we should not take from this variety of definitions and concepts the lesson that there is nothing to transparency worth talking about. However, we must recognize that transparency’s definition is dispersed. Further, given the disparity of definitions of the concept of transparency, I would argue to discern and hold open at least three aspects of our enquiry into the right to information and transparency. First, we should recognize that transparency itself can be instrumentally rational towards other values. Transparency can promote, for instance, the values of accountability and participation. This potential relationship of transparency to other values seems worth recognizing, especially in light of the relative paucity and relative lack of clarity of the definition of transparency. Holding onto the possibility of broad definitions of transparency allows for transparency in narrow definitions to play an intermediating role in promoting values or concepts that might be seen to reside in more fulsome definitions of transparency (yet outside a narrow definition). It is of course also the case that the relationship between transparency and other values may not always be a positive one. To take one oft-stated example, there may be a negative relationship between transparency and privacy. Indeed, this is undoubtedly true in some contexts. For instance, greater public access to information about 3

Benedict Kingsbury/Megan Donaldson, ‘Power and the Public: The Nature and Effects of Formal Transparency Policies in Global Governance Institutions’, chapter 19 in this volume.

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an individual – greater transparency of that individual’s personal information – may allow for and facilitate an invasion of that individual’s privacy. While the relationship of privacy and transparency is better seen as complex rather than a zero-sum relationship, the example of privacy should serve to remind us that transparency is not an unalloyed universal public good. Second, we should recognize the critical importance of the normative angle in any investigation of the right to information and transparency. In a recent article, Roy Peled and Yoram Rabin surveyed the right to information’s normative justifications.4 They see the right to information as ‘a multidimensional right. It serves a range of individual and group interests and rests on various theoretical justifications. The four major justifications are: (a) the political democratic justification; (b) the instrumental justification; (c) the proprietary justification; and (d) the oversight justification’.5 Their discussion of the fourth is of particular interest, since it is explicitly a governance, rather than a rights-based, justification. Without sketching a full-scale normative theory or even mounting a defence of the proposition, this chapter will assume that an adequate (albeit not necessary complete) theoretical defence for both transparency and the right to information may be founded on justification as a concept of justice.6 Broadly speaking, this normative 4

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Roy Peled/Yoram Rabin, ‘The Constitutional Right to Information’, Columbia Human Rights Law Review 42 (2011), 357–401; at 358 Peled and Rabin argue that ‘the right to information should be seen as a constitutional right, due to its political nature and its unique role in protecting democracy’. See also Patrick Birkinshaw, Freedom of Information: The Law, the Practice, and the Ideal (Cambridge University Press, 2010). Peled/Rabin, ‘Constitutional Right to Information’ 2011 (n 4), 360. The specific relationship of transparency, openness, accountability and responsiveness in the South African constitution was perceptively yet incompletely analyzed by Etienne Mureinik. Before his death in 1995, Mureinik was an administrative law scholar at the cusp of the constitutionalization of South Africa’s open democracy. See e.g. David Dyzenhaus, ‘Law as Justification: Etienne Mureinik’s Conception of Legal Culture’, South African Journal on Human Rights 14 (1998), 11–37; and Karl E. Klare ‘Legal Culture and Transformative Constitutionalism’, South African Journal on Human Rights 14 (1998), 146–188. In his enduring conceptualization, the new constitutional democracy replacing apartheid was to be based on a culture of justification. Etienne Mureinik, ‘A Bridge To Where? Introducing the Interim Bill of Rights’, South African Journal on Human Rights 10 (1994), 31–48. The Constitutional Principles (which Mureinik helped to draft) upon which the South African interim and final constitutions were based held as follows: ‘[t]here shall be a separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness, and openness’ (principle VI) and ‘[p]rovision shall be made for freedom of information so that there can be open and accountable administration at all levels of

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assumption fits within the tradition of Jürgen Habermas and the Frankfurt School. Indeed, there is some new work on justification as a theory of justice that has been recently published.7 Third, we should in my view embrace and even further the diversity of concepts embodied within the right to information. In earlier work elaborating upon the conceptual foundations of the right to information as entrenched in the South African constitution, I have argued that there are four components to this right: a democracy-supplementing right, an individual-autonomy right, a market-supplementing right and a socioeconomic right: The first concept underlying the right of access to information is the notion that access to information supplements democracy. This understanding of the right of access to information is its most prevalent and common understanding. (. . .) Either in the form of representative democracy where access to information serves as a check on governmental power or in the form of participatory democracy where access to information allows citizens to partake in genuine public debate, the right finds its traditional backing in democratic rationales. Likewise, the constitutional value of transparency, the value most closely linked to the right of access to information, is itself a means to democratic accountability and participation. The second concept underlying the right of access to information is that access to information is an important supplementation of the market. Here, the disclosure of information is seen as going beyond a public role, playing instead a role in allowing the market in goods and services to self-regulate. More information leads to more informed consumer choices. Transparency and the disclosure of information can be an effective and significant facilitator of economic efficiency. In its most radical form, the concept argues that the provision of information can restructure the very rules of the market itself. The third concept underlying the right of access to information is the idea that access to information reinforces or is indeed constitutive of individual autonomy. Often the right to privacy is considered to be in two

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government’ (principle IX). Mureinik argued that what he acknowledged to be the ambiguous concept of responsiveness was itself a means for advancing two separate and distinct values: participation and accountability. Etienne Mureinik, ‘Reconsidering Review: Participation and Accountability’, Acta Juridica 35 (1993), 35–46. This chapter assumes that an analogous argument could be made regarding transparency. This should be contrasted with definitions of transparency that specifically exclude the elements of accountability and participation such as that of Julie Maupin, ‘Transparency in International Investment Law: The Good, the Bad and the Murky’, chapter 6 in this volume. Rainer Forst, The Right to Justification: Elements of a Constructivist Theory of Justice (New York: Columbia University Press, 2011).

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jon athan klaaren parts: one protecting personal autonomy and the other protecting information about a particular person. In the negative sense, where the right to privacy protects the individual from having information about themselves published without consent, it is perhaps the right to privacy more than the right of access to information that is implicated. (. . .) But with respect to the positive sense, to the extent that an individual has a right to information in order to pursue self-development and actualisation, the access to information right has a dimension that comes into its own and is separate from privacy. The fourth concept underlying the right of access to information is the character of information as a socio-economic resource. (. . .) [H]ere, the matters of form and substance become almost inextricably intertwined. (. . .) [O]ne can [most] easily understand access to information as access to a mechanism for access to information rather than as direct access to information. For instance, access to an adequate telephone service may be more easily understood as the exercise of the right of access to information than access to the content of a telephone conversation. Adequate public access to the internet (itself a mechanism of accessing information) is a manifestation of the right of access to information more than the mass provision of all the information available on the internet. Thus, the socio-economic dimension of the right of access to information is a right to access a mechanism to access information.8

3. The Human Right to Information in International Law: An African Perspective This section briefly surveys two perspectives on the human right of access to information and transparency globally.9 The first perspective is that of public international law. As recently summarized by Roy Peled and Yoram Rabin: 8

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Jonathan Klaaren, ‘A Right to a Cellphone? The Rightness of Access to Information’, in Richard Calland/Alison Tilley (eds.), The Right to Know, The Right to Live: Access to Information and Socio-economic Justice (Cape Town: Open Democracy Advice Centre, 2002), 17–26 (citations omitted). The leading access-to-information NGO in Africa, Open Democracy Advice Centre (ODAC) has largely followed and implemented the strategy suggested by an instrumentalist conception of the right to information. For an articulation of such a conception, see e.g. Saras Jagwanth, ‘The Right to Information as a Leverage Right’, in Richard Calland/Alison Tilley (eds.), The Right to Know, The Right to Live: Access to Information and Socio-economic Justice (Cape Town: Open Democracy Advice Centre, 2002), 2–16. Its inspiration for combining a public international law and an African perspective lies with John Dugard, International Law: A South African Perspective (Cape Town: Juta, 4th edn, 2012).

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European law and inter-American law suggest an accelerating trend with respect to recognizing freedom of information as a right that flows from the right to freedom of expression. In addition, there are indications that the international legal community is beginning to recognize freedom of [information] as an autonomous right. (. . .) The burgeoning perception in legal circles is that the right to freedom of information has been established as a recognized right in international law, and that we can expect further institutionalization in states’ laws in the coming years.10

This bullish statement is supported by developments in recent case law and treaty interpretation.11 In a highly significant move in 2011, the Human Rights Committee interpreting the International Covenant on Civil and Political Rights has now recognized a separate identity to the right to information from that of freedom of expression. In its view, a right to information is founded in article 19(2) of the Universal Declaration of Human Rights.12 Titled ‘Right of Access to Information’, paragraphs 18 and 19 of General Comment No. 34 of the Human Rights Committee begin by clearly stating: ‘[a]rticle 19, paragraph 2 embraces a right of access to information held by public bodies. Such information includes records held by a public body, regardless of the form in which the information is stored, its source and the date of production’.13 As the pre-eminent enforceable 10 11

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Peled/Rabin, ‘Constitutional Right to Information’ 2011 (n 4), 381. For a recent overview, see Marcos A. Orellana, ‘The Right of Access to Information and Investment Arbitration’, ICSID Review: Foreign Investment Law Journal 26 (2011), 59–106, 62–76. UNGA, Universal Declaration of Human Rights, A/RES/217(III)A, 10 December 1948. UN, International Covenant on Civil and Political Rights, Human Rights Committee, General Comment No. 34, CCPR/C/GC/34, 12 September 2011, para. 18 continues: ‘[p]ublic bodies are as indicated in paragraph 7 of this General Comment. The designation of such bodies may also include other entities when such entities are carrying out public functions. As has already been noted, taken together with article 25 of the Covenant, the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to receive media output. Elements of the right of access to information are also addressed elsewhere in the Covenant. As the Committee observed in its general comment No. 16, regarding article 17 of the Covenant, every individual should have the right to ascertain in an intelligible form, whether, and if so what, personal data is stored in automatic data files, and for what purposes. Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control their files. If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law, every individual should have the right to have his or her records rectified. Pursuant to article 10 of the Covenant, a prisoner does not lose the entitlement to access to his medical records. The Committee, in general comment No. 32 on article 14, set out the various entitlements to information that are held by those

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universal human rights treaty text, this interpretation of article 19(2) to found a right of access to information in international law is highly significant as well as welcome. One of the judicial sources upon which this authoritative statement is able to draw and build upon is that of a 2006 decision of the InterAmerican Court of Human Rights. In the first such ruling from an international tribunal, on 11 October 2006 that Court decided in Claude Reyes and Others v. Chile that there is a general right of access to information held by government.14 That Court held: [T]he information should be provided without the need to prove direct interest or personal involvement in order to obtain it, except in cases in which a legitimate restriction is applied. The delivery of information to an individual can, in turn, permit it to circulate in society, so that the latter can become acquainted with it, have access to it, and assess it. In this way, the right to freedom of thought and expression includes the protection of the right of access to State-held information, which also clearly includes the two dimensions, individual and social, of the right to freedom of thought and expression that must be guaranteed simultaneously by the State.15

A further significant regional judicial source developing the right of access to information in international law is the European Court of Human Rights (ECtHR) case of Társaság a Szabadságjogoke´rt v. Hungary.16 This case dealt with a denial of access to the details of a Hungarian parliamentarian’s complaint pending before that country’s

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accused of a criminal offence. Pursuant to the provisions of article 2, persons should be in receipt of information regarding their Covenant rights in general. Under article 27, a State party’s decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities’; para. 19: ‘[t]o give effect to the right of access to information, States parties should proactively put in the public domain Government information of public interest. States parties should make every effort to ensure easy, prompt, effective and practical access to such information. States parties should also enact the necessary procedures, whereby one may gain access to information, such as by means of freedom of information legislation. The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant. Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information. Authorities should provide reasons for any refusal to provide access to information. Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failures to respond to requests’. IACrtHR, Claude-Reyes and Others v. Chile, Judgment of 19 September 2006 (Merits, Reparations and Costs), Series C No. 151. Ibid., para. 77. ECtHR, Társaság a Szabadságjogoke´rt v. Hungary, Judgment of 14 April 2009, Application No. 37374/05.

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Constitutional Court. The complaint concerned provisions of drugrelated legislation and the request for access came from a Hungarian civil society non-governmental organization, a ‘social watchdog’ in the parlance of the ECtHR. The Court’s reasoning was based in part on the circumstances of the case – concerning a matter of public interest (the constitutionality of drug-related legislation) and the potential for arbitrary denial (and indirect censorship) through refusal of access to the details of the constitutional complaint against such legislation. As the Court put it: ‘the present case essentially concerns an interference – by virtue of the censorial power of an information monopoly – with the exercise of the functions of a social watchdog, like the press, rather than a denial of a general right of access to official documents’.17 Nonetheless, the case represents a significant development in the ECtHR’s jurisprudence elaborating and recognizing a right of access to information. One of the routes to legal status in international law is of course through article 38 ICJ Statute and general principles, bolstering an argument regarding the status of the right of access to information at customary international law.18 This would be an alternative in some contexts to the interpretation of the International Covenant on Civil and Political Rights noted above. Indeed, over sixty countries now have a constitutional right to access to official information and about ninety have developed freedom of information laws.19 The significant and increasing African place in this explosive trend is worth noting. The South African access to information regime is often cited, at least in terms of doctrine if not implementation, as a global gold standard, and at least eight African countries are commonly cited as having working freedom of information regimes. A Human Rights Council report of 2011 – in its exploration of the second dimension of universal access and access to the internet – seems to bolster the socio-economic understanding of the right to information. The report states that ‘the Special Rapporteur believes that the Internet is one of the most powerful instruments of the 21st century for increasing transparency in the conduct of the powerful, access to information, and 17 18

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Ibid., para. 36. See e.g. the discussion in Antonios Tzanakopoulos, ‘Transparency in the Security Council’, chapter 14 in this volume. See Right2Info, ‘Constitutional Protections of the Right to Information’, available at: http:// right2info.org, overview; Toby McIntosh, ‘FOI Laws: Counts Vary Depending on Definitions’, 28 October 2011, available at: www.freedominfo.org; and Roger Vleugels, ‘Fringe Special: Overview of all FOI Laws’, 9 October 2011, available at: www.right2info.org.

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for facilitating active citizen participation in building democratic societies’.20 A second and particularly African perspective starts with the African Charter on Human and People’s Rights, adopted by the Organization of African Unity in 1981.21 Article 9(1) provides that ‘[e]very individual shall have the right to receive information’ and article 9(2) provides that ‘[e]very individual shall have the right to express and disseminate his opinions within the law’. These formulations are relatively cautious. Indeed, they do not use or include the term ‘seek’ which has been a key textual term in the elaboration of a free-standing right of information. Nonetheless, these provisions have been aggressively and substantively interpreted by the African Commission and by the Commission’s Special Rapporteur on Freedom of Expression and Access to Information in Africa into an understanding (at least at the level of the Commission) of a free-standing right of access to information separate from the right of freedom of expression.22 Moreover, the African human rights machinery has moved quickly to implement this understanding. For instance, the Special Rapporteur has recently conducted and concluded a process of drafting a model law for African Union member States on access to information, with provisions in many instances more far-reaching and progressive than those of South Africa’s Promotion of Access to Information Act.23 In the specific area of access to environmental information, there is a significant African instrument, the 2003 African Convention on the Conservation of Nature and Natural Resources, beyond the African Charter.24 This Convention is not yet in force. The African perspective is further informed by a cultural analysis of the right to information, an analysis that should inform any discussion of the right and its status in international law. Such a socio-legal perspective 20

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UNGA, Human Rights Council, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Frank La Rue, A/HRC/ 17/27, 16 May 2011, para. 2. African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 UNTS 217. African Commission on Human and Peoples’ Rights, ‘Resolution 122: Resolution on the Expansion of the Mandate and Re-appointment of the Special Rapporteur on Freedom of Expression and Access to Information in Africa’, 28 November 2007, available at: www.achpr.org. Available at: www.africafoicentre.org/. African Convention on the Conservation of Nature and Natural Resources (Revised Version), 1 July 2003, available at: www.au.int. The 1968 version of the African Convention on the Conservation of Nature and Natural Resources, 15 September 1968, 1001 UNTS 3, is in force.

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is consistent with a variant of international law scholars aiming to take on established views of the efficacy of public international law and human rights.25 In this socio-legal vein, Bronwen Morgan has examined the social and global construction of the right to water, an examination that might provide a template for an examination of the right to information.26 In their work, Freedom of Information and the Developing World: The Citizen, the State, and Models of Openness, Colin Darch and Peter Underwood begin with South Africa but expand to include the Global South. Darch and Underwood draw on the critical human rights theory of the African human rights scholar Makau W. Mutua to present an appreciative yet critical view of freedom of information, beginning with an enquiry into how access to information regimes actually work (or do not work) in regimes of the Global South.27 Darch and Underwood reject a universalized model for freedom of information, contending that such an understanding is too legalistic, adversarial and frankly colonial. Instead, they argue that local conditions such as adequacy of recordkeeping practices and the capacity of national bureaucracies determine the relative success or failure of regimes of access to information.28 Specifically examining the relationship between the right to information and government transparency, they concluded that 25

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See e.g. the work by Ryan Goodman and Derek Jinks arguing that acculturation is a social process distinct from persuasion or coercion and one by which international law influences States, and further that human rights law might harness this mechanism in designing effective global regimes. Ryan Goodman/Derek Jinks, ‘How to Influence States: Socialisation and International Human Rights Law’, Duke Law Journal 54 (2004–2005), 621–703. Bronwen Morgan, ‘Turning off the Tap: Urban Water Service Delivery and the Social Construction of Global Administrative Law’, European Journal of International Law 17 (2006), 215–246, 215. In her view, ‘the process of socially constructing global administrative law is centred in iterative interaction between formal legal and informal political modes of participation, especially social protest and political negotiations. It is a process with two modes, political and technical, and the political salience of global administrative law is shaped first by differential capacities to deploy both modes, and secondly by the capacity to switch between national and international levels of governance’; Bronwen Morgan, Water on Tap: Rights and Regulation in the Transnational Governance of Urban Water Services (Cambridge University Press, 2011). Colin Darch/Peter G. Underwood, Freedom of Information and the Developing World: The Citizen, the State, and Models of Openness (Oxford: Chandos Publishing, 2010) (drawing on Makau W. Mutua, ‘The Ideology of Human Rights’, Virginia Journal of International Law 36 (1996), 589–657. Darch/Underwood, Freedom of Information 2010 (n 27), 205–244 and ch. 7 (‘Struggles for Freedom of Information in Africa’).

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jon athan klaaren [W]hile many of the outcomes [claimed as a result of the social impact, historical rootedness, political effectiveness, and human rights character of freedom of information legislation] are probably impossible without some kind of state transparency towards the citizenry, the outcomes themselves do not logically or necessarily result from the existence of legislation guaranteeing access to information, or indeed from any other kind of information access practice. The relationship between cause and effect, in other words, is both complex and dialectical.29

4. Conclusions and Questions for Further Consideration This chapter has argued that attention to the conceptual understandings of the right to information and of transparency is helpful towards understanding how the human right to information can be and is a vehicle for transparency in international law. This concluding section poses a number of questions about the conceptual underpinnings of the right of access to information in international law for further consideration, and uses several post-apartheid South African cases to illustrate those questions. One question to explore further from the viewpoint of international law is the degree to which the right of access to information may be seen as overlapping with the right of access to court. The potential conceptual overlap may be seen in the South African case of Mphahlele v. First National Bank of South Africa Ltd, which deals with the transparency of judicial reasoning.30 The applicant in Mphahlele challenged the Supreme Court of Appeal’s long-standing practice not to provide reasons when dismissing an application for leave to appeal.31 The applicant argued that there was a direct link between the right to information and the constitutional value of openness.32 The Constitutional Court agreed that reasoned decisions ensured openness and transparency but held that the court of first instance had provided reasons for the dismissal of the application and that the practice of no reason for the court of final instance was not inconsistent with an open and democratic society.33 Interestingly, and perhaps revealing some doctrinal potential in

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Ibid., 248 (summarizing ch. 2 (‘Developing Countries and Freedom of Information’)). Constitutional Court of South Africa, Mphahlele v. First National Bank of South Africa Ltd, Judgment of 1 March 1999, Case CCT 23/98. Ibid. 32 Ibid., para. 9. A two-judge court of final instance, as required, had considered the lower court’s reasons and found that there was no prospect of a successful appeal. Ibid., para. 18.

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international law, the question in Mphalele was turned from a rights question into a duty question. Judge Goldstone found a duty on the judicial officers of the State to give reasoning for their judicial decisions. This duty was said to come from the constitutional access to court right, not from the access to information right. Another South African case, Independent Newspapers (Pty) Ltd v. Minister for Intelligence Services, may be similarly directly relevant to the potential for the right of access to information to be recognized in international law as part of a justiciable principle of open justice.34 The facts of the case concerned the constitutionality of the President’s dismissal of the chief of the intelligence service. Referring to freedom of expression, access to information, access to courts, and the right to a public trial as well as the constitutional founding value of openness, Deputy Chief Justice Moseneke clustered the concepts together and stated that this collective concept formed the basis of the media’s right to gain access to, observe and report on the administration of justice.35 Here, the Constitutional Court created and then applied not a specific textual constitutional right, but a constitutional concept, which the Court termed open justice.36 Even more fundamental, perhaps, than the potential overlap in international law of the right of access to information with the right of access to court is the overlap between the right of access to information and the identification and development of accountability, participation, and good governance as well as transparency, as general principles of international law. In his volume, Antonios Tzanakopoulos argues that:

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Constitutional Court of South Africa, Independent Newspapers (Pty) Ltd v. Minister for Intelligence Services (Freedom of Expression Institute as Amicus Curiae) in re: Masetlha v. President of the Republic of South Africa and Another, Judgment of 22 May 2008, Case CCT 38/07, [2008] ZACC 6. Ibid., para. 39; the judgment also refers to Constitutional Court of South Africa, South African Broadcasting Corporation Ltd v. National Director of Public Prosecutions and Others, Judgment of 21 September 2006, Case CCT 58/06, paras. 31–32, where Chief Justice Langa states that the foundational values of accountability, responsiveness and openness also applies to the functioning of the judiciary; and Judge Yacoob in Constitutional Court of South Africa, Shinga v. the State and the Society of Advocates (Pietermaritzburg Bar) as Amicus Curiae); O’Connell and Others v. The State, Judgment of 8 March 2007, Case CCT56/06; CCT80/06, [2007] ZACC 3, para. 26: ‘the principle of open justice is an important principle in a democracy’. Ibid., para. 1; see also Jonathan Klaaren, ‘Open Justice and Beyond: Independent Newspapers v. Minister for Intelligence Services (in re: Masetlha)’, South African Law Journal 126 (2009), 24–38.

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jon athan klaaren ‘[T]ransparency’ is not a free-standing primary norm, which prescribes or proscribes or permits certain action, but rather it is a norm without any independent normative charge. It is a contingent obligation (of the [Security] Council) and right (of the Member States) which mediates between the powers of the Council to act, and the residual powers of Member States to exercise diffuse control over the exercise of those Council powers.37

The South African post-apartheid case of Matatiele Municipality and Others v. President of the Republic of South Africa and Others38 would be relevant to an argument for a greater role for the norm of transparency. In this case, the issue of openness first arose due to a provincial legislature’s failure to be open to public participation, particularly by a local community slated to be relocated from one province to another. The Constitutional Court held that the South African Constitution calls for open and transparent governance, that the democracy contemplated in the Constitution includes elements of participatory democracy and specifically that a purposive interpretation of the relevant Constitutional section demanded that the provincial legislature should have afforded the members of the community a reasonable opportunity to participate in a decision that would directly and profoundly impact on their community.39 Here, the norm of transparency is understood by the Court to be directly assisting in the achievement of participation. Another conceptual question relating to the location of the right of access to information in international law can be related to the private/ public distinction. While the dominant view is that the right to information is adversely related to privacy and secrecy, the conceptual relationship may well be more complex and multidimensional. Even if the norm of privacy does not benefit States, the norm of secrecy (at least as understood as a matter of communication among States) does. The Constitutional Court’s jurisprudence and reasoning in the informational privacy cases thus far brought before it have left open the interpretation that the right of information includes as a right a component of

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Antonios Tzanakopoulos, ‘Transparency in the Security Council’, chapter 14 in this volume. Constitutional Court of South Africa, Matatiele Municipality and Others v. President of the Republic of South Africa and Others, Judgment of 18 August 2006, Case CCT 73/05. Ibid., para. 97: ‘[l]aw-makers must provide opportunities for the public to be involved in meaningful ways, to listen to their concerns, values, and preferences, and to consider these in shaping their decisions and policies’.

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informational privacy.40 Paradoxically, informational privacy may thus comprise an important part of transparency.41 One thinks that concern with confidentiality and privacy is antithetical to the development of transparency. Thus, the development of a norm of informational privacy, where an individual may enforce certain rights and norms concerning information about that individual, can be seen as taking away from transparency. While this view may have some validity at a general level, attention to specific cases where the limits of transparency are contested and where judicial determinations must be made demonstrates that transparency and information privacy may also be seen as two sides of the same coin. A final conceptual question engages with what this chapter’s section 2 identified as a market-supplementing component of the right to information. The relationship of this component to transparency may be of particular interest for international law. An assertion of the right to information may push along a regulatory regime based on transparency. For example, the South African case of Clutchco demonstrates the potential for the right of access to information to effect significant, albeit limited, regulatory change. In Clutchco (Pty) Ltd v. Davis, the Supreme Court of Appeal subjected the South African regime of corporate regulation to the right of access to information.42 Indeed, it would be valuable to engage in further research on how this market-supplementing component of the right to information overlaps with the view of information as a socio-economic right. The relationship between regimes of access to information and market dynamics is fundamental and complex.43 For instance, one can argue that another

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Constitutional Court of South Africa, Mistry v. Interim National Medical and Dental Council of South Africa, Judgment of 29 May 1998, Case CCT 13/97. Some thinking in the analysis of privacy looks at privacy as giving differential access to information. This is analogous to some analyses of secrecy, such as that of David Pozen, ‘Deep Secrecy’, Stanford Law Review 62 (2010), 257–339. Differential access of information as applied to the privacy right can be one of the ways of analysing the coherence of the concept of privacy. This differential access line of thinking may allow us to make direct connections between informational privacy, secrecy, openness and transparency. This line of thinking would also hold that openness is not just a virtue of public institutions. Supreme Court of Appeal of South Africa, Clutchco (Pty) Ltd v. Davis, Judgment of 24 March 2005, Case No. 35/04. Thomas Cottier has explored in general terms the relationship between markets and human rights, arguing that there are deep economic and juridical linkages as well as mutual interdependence. Thomas Cottier, ‘Trade and Human Rights: A Relationship to

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example of the assertion of the right of access to information assisting a transparency regime has recently taken place in the realm of international economic law. In the WTO decision China – Audiovisuals, the order did not directly impact on the pre-existing and Chinese system of censorship but the application of WTO laws did increase the degree of transparency and the degree of implementation of the pre-existing Chinese freedom of information regime.44 In this case, adjudication over the competitive function of the international trading system indirectly led to a result that was protective of both freedom of expression and the right of access to information. The impact of the case can be seen as both setting market rules and influencing the shape of State institutions.

44

Discover’, Journal of International Economic Law 5 (2002), 111–132. Cottier and Sangeeta Khoran have specifically explored the relationship of the freedom of expression (understanding this to include the right to information) and the competition rules of the multilateral WTO trading system, noting of course that the WTO does not include competition rules, nor does it protect the freedom of expression. Thomas Cottier/ Sangeeta Khorana, ‘Linkages between Freedom of Expression and Unfair Competition Rules in International Trade: The Hertel Case and Beyond’, in Thomas Cottier/Joost Pauwelyn/Elisabeth Burgi (eds.), Human Rights and International Trade (Oxford: Hart, 2005), 245–272. Their case study of the Hertel case drew attention to ‘the close interrelationship between information and the functioning of markets’. Indeed, in their view, the significance of access to information extends nearly to the point of providing a justification for the existence of the WTO: ‘[n]o trading system, whether domestic, regional or international can ignore that symmetry of information is vital for the functioning of markets and the legal instruments and rules need to be designed on all levels to remedy asymmetries which markets produce without an appropriate legal framework. Information economics shows that the theory of the “invisible hand” has been rendered ineffective. It calls for appropriate government intervention. It is increasingly perceived that a supranational, multilateral and public body is required to regulate commercial trade by the rule of law on the basis of mutual and freely entered agreements’, at 271. WTO, China – ‘Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products’, WT/DS363/AB/R, 21 December 2009; see also Panagiotis Delimatsis, ‘Protecting Public Morals in a Digital Age: Revisiting the WTO Rulings in US-Gambling and China-publications and Audiovisual Products’, Journal of International Economic Law 14 (2011), 257–293; Joost Pauwelyn, ‘Free Trade in Culture with Chinese Censorship: The WTO Appellate Body Report on China-audiovisuals’, Melbourne Journal of International Law 11 (2010), 119–140.

10 Transparency at Home: How Well Do Governments Share Human Rights Information with Citizens? cosette creamer and beth a. simmons*

1. Introduction Over the past few decades, an increasing number of States have adopted access-to-information laws or other institutions designed to make available information about government decisions and activities.1 A number of factors have made possible this trend toward greater governmental transparency. The spread of democratic government worldwide, the emergence of a global civil society, the proliferation of international regimes requiring States to disclose information, and the widespread availability of information and communication technologies have all likely contributed to the global transparency trend.2 Underlying these pressures is a strong belief that transparency influences, among other things, the quality and efficiency of governance. The purpose of this chapter is to contribute to our knowledge about the role of transparency in safeguarding and improving human rights, as * Alexander Noonan and Ashley DiSilvestro provided invaluable research assistance. We also benefited from discussions of an earlier version of this chapter at the authors’ retreat for ‘Transparency in International Law’ and at the International Law – International Relations Workshop at Harvard University. All errors remain ours alone. 1 John M. Ackerman/Irma E. Sandoval-Ballesteros, ‘The Global Explosion of Freedom of Information Laws’, Administrative Law Review 58 (2006), 85–130. 2 There is no commonly agreed-upon definition of transparency. Some scholars and international organizations employ a definition that focuses on ensuring public access to information. For Ann Florini, transparency refers to the ‘degree to which information is available to outsiders that enables them to have informed voice in decisions and/or to assess the decisions made by insiders’. Ann Florini, ‘Introduction: The Battle Over Transparency’, in Ann Florini (ed.), The Right to Know: Transparency for an Open World (New York: Columbia University Press, 2007), 1–16, 5. Others employ definitions that reference, in addition, the scope, accuracy and timeliness of information provided.

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one element of governance. We define transparency as the dissemination of regular and useful information.3 Many studies assume that information about government policies and practices helps improve compliance with international and domestic human rights law,4 but they have not documented how and to what extent information-enhancing institutions and practices have been ensconced at the international and especially the domestic levels. We argue that one critical window into this matter is the establishment of national human rights institutions (NHRIs). NHRIs are independent governmental bodies specifically mandated to protect and promote human rights, and represent focal institutions for the provision of transparency about rights law and practice at the national level. We argue that the efficaciousness of these institutions depends on how and whether they actually inform people about the nature of human rights law and how individuals can act on this knowledge if they think their rights have been violated. Nowadays, websites represent the main tool by which NHRIs inform citizens of these matters. We show that NHRI websites are now commonplace, but recognize they are only potentially useful if they work, are navigable, and provide information that citizens can use to hold their governments and private actors accountable. Not all NHRI websites rate highly in this regard and they display considerable differences in the quality and quantity of information provided. We find that internet penetration within a country is a very strong predictor of a useful and user-friendly NHRI human rights website. Unsurprisingly, however, it is impossible to attribute better rights practices to this ‘window’ per se. Internet penetration itself is strongly associated with better rights practices across countries. We think it likely that NHRIs contribute in a small way to transparency in the human rights domain, but that their effects cannot be disentangled from the transparency effects of the internet more generally. This chapter proceeds as follows. In the second section, we discuss theories of compliance with international human rights obligations, and the potential role of transparency in encouraging improved human rights practices. The third section discusses the role of NHRIs in monitoring, promoting and educating people about their rights. We show 3

4

Ronald B. Mitchell, ‘Sources of Transparency: Information Systems in International Regimes’, International Studies Quarterly 42 (1998), 109–130, 109. Xinyuan Dai, International Institutions and National Policies (New York: Cambridge University Press, 2007); Beth A. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (New York: Cambridge University Press, 2009).

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that they have spread over time, that most now have websites, and that many of these websites are operable and in fact do contain information about local and international law in a form comprehensible to laypersons. The fourth section employs statistical analyses to assess the conditions associated with the existence of highly transparent websites, and the fifth section explores correlations between these sites and human rights practices. We are far from providing a causal model linking transparency with better human rights, but note that both internet penetration and more transparent NHRI websites are associated with better rights practices in countries around the world. While we think it highly likely that governments that respect human rights are more willing to be more transparent about their human rights obligations, practices and available remedies, we also conclude that a better window on government practices may reinforce positive developments by enhancing the ability of individuals and groups to stay informed and hold governments and other actors accountable for their actions.

2. Transparency and Human Rights: The State of the Art In the context of human rights, transparency refers to the provision and accessibility of information about: (a) the specific human rights guaranteed, both internationally and nationally, to citizens, and what these rights mean in practice; (b) the procedures and legal processes available to ensure realization of their rights; and (c) a government’s policies and practices of human rights protection.5 Under this definition, human rights transparency is viewed not as an end in itself but as an instrument for improving States’ human rights practices. The consumers of this information are both citizens affected by a government’s human rights practices, and international treaty bodies and NGOs tasked with monitoring these practices. Transparency is often cited as the solution to a host of development and governance problems. The claimed benefits of greater transparency are many: it can improve investment climates and financial market performance more generally; it can promote public debate and improve policy-making; and it can increase the ability of legislatures, the media and civil society to hold policy-makers accountable, thereby increasing 5

These are similar to the elements of transparency identified by Abraham Chayes/Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge Mass.: Harvard University Press, 1995), 135–153.

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public trust and confidence in government. There are thus a number of theoretical reasons to expect greater transparency to improve States’ compliance with human rights obligations, as transparency is often viewed as contributing to increased accountability of governments to both international and domestic actors. More specifically, most theories of compliance with international law rely explicitly or implicitly on the availability of information about government activities and legal obligations. Still, international human rights treaties do not establish a legal obligation on States to be transparent about their human rights practices. None of the nine major human rights treaties, or their optional protocols, mention transparency in relation to States.6 The only use of the word ‘transparent’ is found within article 35(4) of the Convention on the Rights of Persons with Disabilities, which provides that ‘[w]hen preparing reports to the Committee, States Parties are invited to consider doing so in an open and transparent process’.7 In particular, States ‘shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations’.8 In contrast, the Convention against Torture explicitly provides for the absence of transparency, in the form of confidential inquiries under article 20 into the systematic practice of torture within a country.9 In terms of dissemination of information about human rights, the Convention on the Rights of the Child is the only treaty to provide that State parties are to ‘undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike’.10 6

7 8 10

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85; Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, 1249 UNTS 13; Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3; International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, 660 UNTS 195; Convention on the Rights of Persons with Disabilities, 13 December 2006, 2515 UNTS 3; UNGA, Resolution Adopted by the General Assembly: International Convention for the Protection of All Persons from Enforced Disappearance, A/RES/61/177, 12 January 2007, annex; International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 18 December 1990, 2220 UNTS 93; International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171; International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3. Convention on the Rights of Persons with Disabilities, 2006 (n 6), art. 35(4). 9 Ibid., art. 4(3). Convention against Torture, 1984 (n 6), art. 20. Convention on the Rights of the Child, 1989 (n 6), art. 42.

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Much of the early human rights scholarship implicitly viewed transparency at the international level as a key mechanism to encourage compliance with human rights obligations. By ratifying international human rights treaties, States became legally obligated to be open about their human rights practices as well as their efforts to implement treaty obligations. Every major human rights convention establishes an independent oversight committee to which States are required to submit periodic reports on the legislative, judicial, administrative or other measures adopted to give effect to human rights obligations. Most human rights conventions, though, do not require States to otherwise disseminate these periodic reports. The Convention on the Rights of the Child and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families are exceptions, as they provide that ‘States Parties shall make their reports widely available to the public in their own countries’.11 After considering periodic State reports, each committee then typically provides concluding observations and often requests additional information. Each committee is also permitted to transmit its concluding observations and the State reports themselves to other relevant international agencies.12 Through these periodic reports, governments are required to provide information to the treaty committees on their human rights practices and efforts to comply. If States fall short in this regard, the committee – through its concluding observations – often publicly identifies non-compliant States, thereby engaging in a practice of ‘naming and shaming’ – that is, publicizing a country’s human rights violations and calling for reform. Similarly, the Human Rights Council (as previously the United Nations Commission on Human Rights) provides an international forum in which other governments (as opposed to independent treaty bodies) ‘name and shame’ through yearly resolutions. Within these resolutions, individual countries are singled out and publicly criticized for failing to uphold international human rights standards.13 This strategy of ‘naming and shaming’ perpetrators of human rights abuses is often employed by NGOs, and the news media as well. Theoretically, this strategy is believed to negatively affect a State’s reputation for ‘good behaviour’ 11 12 13

Ibid., art. 44(6); Migrant Workers Convention, 1990 (n 6), art. 73(4). See, for example, Convention on the Rights of the Child, 1989 (n 6), art. 45(b). James Lebovic/Erik Voeten, ‘The Politics of Shame: The Condemnation of Country Human Rights Practices in the UNCHR’, International Studies Quarterly 50 (2006), 861–888.

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internationally14 or increase social pressures to comply with human rights treaties.15 However, its effectiveness in improving compliance is questionable. For example, Emilie Hafner-Burton found that global ‘naming and shaming’ is often followed by a continuation of or increase in some human rights violations, even as other types of violations (typically those most visible) are reduced.16 Just as transparency and human rights appear to be mutually reinforcing at the international level, at the domestic level they seem to go hand in hand as synergetic means to promote democratic consolidation, development and good governance generally. And in fact, over the past three decades, the adoption of access-to-information laws has increased dramatically,17 matched if not surpassed by the proliferation of human rights legislation and institutions.18 Most domestic theories of compliance with international law also rely on the availability of information about government activities and legal obligations. For example, Beth Simmons argues that knowledge that one’s government is publicly committed to comply with an international human rights treaty raises the expectations of domestic groups that they can legitimately demand compliance with such treaties.19 Xinyuan Dai hypothesizes that information produced by international bodies can inform domestic audiences about the activities of their governments, and inform judgements about whether a government has complied with its international legal obligations. This information allows domestic constituencies to apply electoral pressure to their government in order to hold them accountable to the law.20 We recognize that there are a number of ways to measure human rights transparency, both domestically and internationally. Nevertheless, 14

15

16

17 18 19 20

Robert Keohane, ‘International Relations and International Law: Two Optics’, Harvard International Law Journal 38 (1997), 487–502; Andrew Guzman, ‘A Compliance-Based Theory of International Law’, California Law Review 90 (2002), 1823–1887. Thomas Risse/Kathryn Sikkink, ‘The Socialization of International Human Rights Norms into Domestic Practices: Introduction’, in Thomas Risse/Stephen Ropp/ Kathryn Sikkinkn (eds.), The Power of Human Rights: International Norms and Domestic Change (New York: Cambridge University Press, 1999), 1–38, 15; Ryan Goodman/Derek Jinks, ‘How to Influence States: Socialization and International Human Rights Law’, Duke Law Journal 54 (2004), 621–703. Emilie Hafner-Burton, ‘Sticks and Stones: Naming and Shaming the Human Rights Enforcement Problem’, International Organization 62 (2008), 689–716. Ackerman/Sandoval-Ballesteros, ‘Freedom of Information Laws’ 2006 (n 1). Simmons, Mobilizing for Human Rights 2009 (n 4), 57–64. Simmons, Mobilizing for Human Rights 2009 (n 4). Dai, International Institutions and National Policies 2007 (n 4).

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the ultimate goal of international human rights treaties is and should be human rights transparency to a State’s population, so that citizens themselves may be provided with the means to further their own human rights. While transparency to international organizations or treaty bodies may be important in encouraging compliance, this chapter focuses on the provision of human rights information to a State’s population. A number of institutions may be responsible for providing such information, but this responsibility increasingly has fallen to NHRIs, which we argue have the potential to contribute significantly to transparency regarding human rights law, policies, practices and remedies. Our empirical focus in this chapter is therefore on the diffusion of these institutions around the world, as well as their potential to shed light on these policies to a broad audience, both at home and abroad.

3. The Role of NHRIs in Human Rights Compliance A ‘national human rights institution’ refers broadly to ‘a body which is established by a government under the constitution, or by law or decree, the functions of which are specifically designed in terms of the promotion and protection of human rights’.21 Originating in western European and Commonwealth countries, NHRIs spread throughout southern Europe, Latin America, and central and eastern Europe during the 1980s and 1990s. More recently, these institutional forms have proliferated throughout Asia and the Middle East. According to our estimates, 144 countries have established some type of a national human rights institution (see Figure 10.1).22 The term ‘national human rights institution’ encompasses a range of governmental bodies with human rights mandates, and in fact there is still considerable debate over the definition of an NHRI.23 The three primary ‘models’ of an NHRI are the classical ombudsman model, the 21

22

23

UN, National Human Rights Institutions: A Handbook on the Establishment and Strengthening of National Institutions for the Promotion and Protection of Human Rights (New York: United Nations, 1995), 6. These estimates are based on lists of NHRIs found within existing scholarship or provided by the International Coordinating Committee of NHRIs. In addition, for each of the 199 countries we examined, we independently conducted extensive web searches for any mention of an NHRI not included within the above lists. Ryan Goodman/Thomas Pegram, ‘National Human Rights Institutions, State Conformity, and Social Change’, in Ryan Goodman/Thomas Pegram (eds.), Human Rights, State Compliance and Social Change: Assessing National Human Rights Institutions (New York: Cambridge University Press, 2012), 1–28, 6–11.

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cosette creamer and beth a. simmons East Asia, Pacific

Europe, Central Asia

Americas, Caribbean

Mid. East, North Africa

South Asia

Sub-Saharan Africa

140 120 100 80 60 40 20

Figure 10.1

9 05 20

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Number of National Human Rights Institutions Worldwide by Region

national human rights commission model, and a hybrid model. The ombudsman model consists of a single member (the ombudsman) and staff, with a mandate typically covering procedural irregularities in public administration, ethnic and gender discrimination and children’s rights. The national human rights commission model is a multi-member institution with a broad mandate to monitor and promote human rights, and in some countries includes the authority to investigate individual complaints. Lastly, the hybrid model, often in the form of a Human Rights Ombudsman Office, combines aspects of the ombudsman and commission models, and deals with both human rights and public administration.24

24

Jeong-Woo Koo/Francisco O. Ramirez, ‘National Incorporation of Global Human Rights: Worldwide Expansion of National Human Rights Institutions, 1966–2004’, Social Forces 87 (2009), 1321–1354; International Council on Human Rights Policy, Performance and Legitimacy: National Human Rights Institutions (Versoix: International Council for Human Rights Policy, 2nd edn, 2004); but see Leonard F. M. Besselink, ‘Types of National Institutions for the Protection of Human Rights and Ombudsman Institutions: An Overview of Legal and Institutional Issues’, in Kamal Hossain et al. (eds.), Human Rights Commissions and Ombudsman Offices (London: Kluwer Law International, 2001), 157–165.

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Serious international cooperation regarding NHRIs really began in the 1990s, with the adoption of the Paris Principles by a group of NHRIs in 1991. The Paris Principles establish general international standards on the mandate and structure of NHRIs, and were later endorsed by the UN Office of the High Commissioner for Human Rights (OHCHR) and the UN General Assembly.25 In 1994, NHRIs established their own network in the form of the International Coordinating Committee of National Human Rights Institutions, charged with organizing and overseeing all international and regional connections. The International Coordinating Committee and the OHCHR have provided some definitional convergence by establishing an accreditation process for NHRIs, based on the institution’s compliance with the Paris Principles.26 Although States are often encouraged to establish an NHRI, there currently exists no international legal obligation for them to do so. According to the Paris Principles, NHRIs are government-initiated and financed institutions that are supposed to remain independent of the government and other actors. While all are ostensibly designed to promote human rights, NHRIs display considerable variation in their official functions. These functions typically include: reviewing proposed and existing legislation for compliance with ‘fundamental principles of human rights’;27 monitoring international treaty implementation; producing reports on a government’s human rights practices; providing training and research opportunities to various governmental and nongovernmental actors; and assisting with individual complaints. Not all NHRIs have explicit jurisdiction over international human rights, particularly within countries that have historically enjoyed strong domestic protections or that prefer domestic to international mechanisms. Yet even for those that do not have an explicit international mandate, NHRIs are often tasked with helping to ensure implementation of and compliance with the human rights conventions a State has ratified. In fact, the UN encourages the establishment of NHRIs precisely because these institutions are believed to provide a central mechanism 25

26

27

UNGA, National Institutions for the Promotion and Protection of Human Rights, A/RES/48/134, 20 December 1993, annex: Principles Relating to the Status of National Institutions (Paris Principles). The Paris Principles include, inter alia: operation independent from government; membership that broadly reflects societal composition; incorporation into legislation; and cooperation with civil society. For a description of the accreditation procedure, see: http://nhri.ohchr.org/EN/AboutUs/ICCAccreditation/Pages/default.aspx. UNGA, Paris Principles, 1993 (n 25), art. 3(i).

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through which international human rights norms can be implemented at the domestic level.28 They are viewed as providing the ‘practical link between international standards and their concrete application’29 and have even been permitted to participate in relevant meetings of the UN Commission on Human Rights and the Human Rights Council.30 One way in which NHRIs contribute to the implementation of international human rights is by influencing the content of domestic human rights legislation, itself often inspired by ratification of international human rights conventions.31 The majority of NHRIs are mandated to advise governments on the compatibility of proposed or existing legislation with international standards. In addition, NHRIs often apply international human rights standards in their monitoring activities, particularly in the drafting of annual reports and in their handling of individual complaints and cases. They are also increasingly viewed as important sources of information regarding States’ periodic reports submitted to international treaty bodies, and many even submit their own ‘shadow reports’ to these bodies. The promotion and education function of NHRIs is perhaps most relevant to a government’s human rights transparency. The educational work of NHRIs covers a broad range of activities, such as public education on human rights, public awareness campaigns, media work, and training State officials about the human rights standards with which they must comply. This public education and awareness function is fundamentally about communicating to the public in simple terms what human rights are and what mechanisms are available to protect them. It also entails publicizing the steps a country has taken to implement and 28

29

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31

UNGA, National Institutions for the Promotion and Protection of Human Rights: Report of the Secretary-General, A/64/320, 24 August 2009; UNGA, The Role of the Ombudsman, Mediator and Other National Human Rights Institutions in the Promotion and Protection of Human Rights, A/RES/63/169, 20 March 2009; UNGA, National Institutions for the Promotion and Protection of Human Rights, A/RES/63/ 172, 20 March 2009; Goodman/Pegram, ‘National Human Rights Institutions’ 2012 (n 23), 16–18. UN, Economic and Social Council, Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, Including the Question of the Programme and Methods of Work of the Commission: National Institutions for the Promotion and Protection of Human Rights: Report of the Secretary-General Submitted in Accordance with Commission on Human Rights Resolution 1996/50, E/CN.4/1997/41, 5 February 1997. Julie A. Mertus, Human Rights Matters: Local Politics and National Human Rights Institutions (Stanford University Press, 2009), 8. Simmons, Mobilizing for Human Rights 2009 (n 4).

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comply with international human rights obligations. In this way NHRIs remain a central locus for transparency regarding government human rights practices, although many NHRIs face significant challenges in making their services accessible to as many people as possible. A growing body of scholarship has sought to identify the conditions facilitating the transnational spread of NHRIs. A number of studies find that international institutions – specifically the OHCHR and UN treaty bodies – play an important role in persuading government actors to establish NHRIs.32 Global and regional NHRI networks have also been identified as significant actors in explaining the particular form of an NHRI.33 Apart from these influential actors, cross-national studies have found some evidence supporting a world polity explanation, according to which countries that are ‘more embedded’ in ‘world culture’ are more likely to create an NHRI.34 A State’s membership in international governmental organizations and NGOs, the number of international human rights conventions it has ratified, and the regional and global density of NHRIs have all been found to help explain the decision to set up this institution. Predictably, democratic countries with few human rights violations are more likely to create an NHRI, though an increasing number of ‘partly free’ and ‘not free’ countries are setting up these institutions as well. Income, based on World Bank gross domestic product per capita categories, on the other hand, does not seem to be correlated with NHRI creation.35

4. NHRI Transparency The formal establishment of an NHRI does not in and of itself guarantee that this institution will provide information or enhance knowledge about a country’s human rights practices and processes. Yet as one of 32

33

34 35

Sonia Cardenas, ‘Emerging Global Actors: The United Nations and National Human Rights Institutions’, Global Governance 9 (2003), 23–42; Thomas Pegram, ‘Diffusion Across Political Systems: The Global Spread of National Human Rights Institutions’, Human Rights Quarterly 32 (2010), 729–760; Peter Rosenblum, ‘Tainted Origins and Uncertain Outcomes: Evaluating NHRIs’, in Goodman/Pegram, Human Rights, State Compliance and Social Change 2012 (n 23), 297–323. Goodman/Pegram, Human Rights, State Compliance and Social Change 2012 (n 23); Linda C. Reif, ‘The Shifting Boundaries of NHRI Definition in the International System’, in Goodman/Pegram, Human Rights, State Compliance and Social Change 2012 (n 23), 52–73. Koo/Ramirez, ‘National Incorporation of Global Human Rights’ 2009 (n 24). Ibid.; Pegram, ‘Diffusion Across Political Systems’ 2010 (n 32).

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the few governmental institutions explicitly charged with human rights promotion and protection, an NHRI is the institution where we would expect to see the most transparency regarding a State’s human rights practices. Perhaps more importantly, the explicit human rights mandate of an NHRI implies that it is the body to which citizens themselves would first look when seeking information about their human rights and the mechanisms available to ensure their realization. And in fact, the extent to which an NHRI makes itself accessible to those most vulnerable to human rights violations has been recognized as a critical element in evaluating the performance and legitimacy of the institution.36 Over the past few decades, advances in information and communication technologies have fundamentally changed how governments provide information and services to their citizens. The broader global movement toward e-government37 suggests that one measure of a government’s transparency is the amount of information it provides on its own websites. And with the dramatic increase over the past decade in internet penetration worldwide, one of the primary methods through which citizens now access information is the internet, which many claim has enhanced the power of non-State actors.38 Admittedly, improvements in telecommunication infrastructure and e-government depend considerably on sufficient resources to provide affordable access. While developed countries would be expected to rely more on e-government, developing countries have also recognized the centrality of information technology infrastructure and e-government, particularly for attracting economic investment.39 Empirical assessments of levels of e-government have confirmed that the dissemination of government information via the internet is not simply a developed-country phenomenon.40

36

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38

39

40

International Council on Human Rights Policy, Performance and Legitimacy 2004 (n 24). Darrell M. West, ‘Global E-Government, 2007’, August 2007, available at: www.inside politics.org. Ronald Deibert, ‘International Plug’n’Play? Citizen Activism, the Internet, and Global Public Policy’, International Studies Perspectives 1 (2004), 255–272; Craig Warkentin/ Karen Mingst, ‘International Institutions, the State and Global Civil Society in the Age of the World Wide Web’, Global Governance 6 (2000), 237–257. Pippa Norris, Digital Divide: Civic Engagement, Information Poverty and the Internet Worldwide (Cambridge University Press, 2001). Darrel M. West, ‘E-Government and the Transformation of Service Delivery and Citizen Attitudes’, Public Administration Review 64 (2004), 15–27; West, ‘Global EGovernment’ 2007 (n 37).

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Table 10.1 National Human Rights Institutions (NHRIs) and NHRIs with Working Websites, by Region NHRIs Region Americas, Caribbean East Asia, Pacific Europe, Central Asia Middle East, North Africa South Asia Sub-Saharan Africa

Number 25 15 46 13 7 34

% countries in region 67.57 48.39 85.19 61.91 87.50 72.34

Working Websites Number 21 12 42 9 7 15

% NHRIs in region 84.00 80.00 91.30 69.23 100.00 44.12

Source: Authors’ database, based on accessing each website during August–September 2011.

As of 2011, most NHRIs do have websites (see Table 10.1). South Asia has the highest proportion of NHRIs of any region in the world, and all have working websites. East Asia has the smallest proportion of NHRIs (slightly less than half of the countries in the region at this point), but most do have working websites. In absolute numbers, Europe and central Asia have the largest number of working NHRI websites, with forty-two. In sub-Saharan Africa, on the other hand, operative NHRI websites are much less common: fourteen countries with NHRIs had no web presence at all, and another five had web addresses that led nowhere. Table 10.2 is a more systematic effort to analyze the correlates of transparency as indicated by the existence of a working website. It presents the findings of a multivariate logit model, which expresses the correlation (if any) between various explanatory variables (listed in the first column on the left of the table) and whether a country has a working website, a non-functioning web address or no website at all. The potential correlates we test are proxies for governance arrangements and capacities, human rights practices, income per capita and internet technical capacity. The results are quite strong and striking. They are also just as one might expect. Countries that are well and transparently governed according to a variety of measures are also more likely to have working NHRI websites. (The sample here covers only

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Table 10.2 NHRIs and Transparency: Correlates of a Working Website (ordered logit coefficients; probabilities) Model 1 Model 2 Model 3 Model 4 Model 5 Government Effectiveness (2000) Rule of Law Democracy (2005–10 average) NHRI age (logged) Physical integrity index (2000) Income level (World Bank) Internet penetration in country Observations Pseudo R2

1.105*** – (p=.001) – .964*** (p=.007) .099** .118*** (p=.024) (p=.010) 1.04* 1.15** (p=.075) (p=.05) – –

–

–

– .972** (p=.042) .164*** (p=.001) 1.32** (p=.017) −.600** (p=.035) .622* (p=.051) .026 (p=.420) 112 .26

–

–

1.59*** (p=.000) .159*** (p=.000) 1.32** (p=.011) −.512** (p=.032) –

–

–

–

1.16** (p=.015) .176*** (p=.000) 1.29** (p=.017) −.597** (p=.015) .751** (p=.015) –

112 .17

112 .17

112 .22

112 .26

Note: * =significant at .10 level; ** =significant at .05 level; *** =significant at .01 level. Dependent variable: 0=no website; 1=web address, but link does not work or does not lead to an operative NHRI website; 2=web address leads to an operative NHRI website. Source of dependent variable: Authors’ database, based on accessing each website during August–September 2011.

those countries with NHRIs; those without are dropped.) Working NHRI websites are correlated with government effectiveness and rule of law (as measured by the World Governance Indicators and the World Bank). Note however that we do not include these variables in the same models because they are highly correlated (with a Pearson’s correlation coefficient of .88). Furthermore, countries that were more democratic on average between 2005 and 2010 were much more likely to have NHRIs with working websites. The older the NHRI (as measured by

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the number of years, logged), the more likely it was to have a working website. Also unsurprisingly, NHRIs in wealthier countries were more likely to have working NHRI websites. There are, however, two surprising results in this table. Once we control for other governance factors, it appears to be the case that the better a country’s human rights practices,41 the less likely it is to have an NHRI website. This may reflect a calculation that good rights practices make this form of transparency somewhat unnecessary. It is also surprising that our proxy for technical capacity – average internet penetration (internet connections per 1,000 population) – has practically no relationship to the existence of a working NHRI website. It seems more likely that transparency with respect to human rights as measured by the existence of a website is correlated with governance indicators rather than technical information technology capacity. Of course it is not enough just to have a website. E-government has the potential to increase transparency only to the extent that citizens and international governmental organizations and NGOs are able to access information on a State’s human rights practices on a timely basis.42 And a website only enhances transparency to the extent that it helps a rights holder know what his or her rights are and how to go about ensuring their realization. This points to a number of specific elements we would expect NHRI websites to provide if they were fully transparent. First, we would expect an NHRI to help citizens understand their legal rights under international and domestic law. Second, a fully transparent NHRI would present clear and unbiased information on a State’s human rights practices, including not only the good news about efforts being made, but also the bad news about continuing problems and weaknesses.43 Third, a transparent NHRI should provide instructions on how citizens can submit complaints or communications to domestic or international treaty bodies, or offer to help in this regard.

41

42

43

Human rights practices are measured by the Physical Integrity Index within the Cingranelli-Richards (CIRI) Human Rights Data Project, which summarizes government compliance with human rights relating to torture, extrajudicial killing, political imprisonment and disappearance. Thomas Barnebeck Andersen, ‘E-Government as an Anti-Corruption Strategy’, Information Economics and Policy 21 (2009), 201–210. While we recognize the importance of accuracy of information provided by NHRIs, our measures of transparency only capture the amount and to some extent the quality of information provided, without evaluating accuracy. We believe this constitutes a sufficient first step in measuring NHRI transparency.

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4.1

Transparency about the Law

In terms of international human rights, actual NHRI websites display some interesting patterns. Of the 106 NHRIs with working websites, only 19 make no reference to international law at all. Thirty-two provide a special section devoted to explaining international legal obligations, with the remaining fifty-five making at least some reference to international law. Surprisingly only nine NHRI websites provide what can be considered a ‘lay definition’ of the protections afforded by international human rights law. In contrast to general references to international human rights, fortyfour NHRI websites provide no indication of the specific conventions the State has ratified. Of those that do, thirty-four provide a list of ratified treaties that appears exhaustive, while twenty-eight mention some ratified treaties but do not provide a systematic list. Fifty-nine NHRI websites provide no working links to treaty texts, while forty-seven do. Why are some NHRIs so clear about the nature of international legal obligations, while others barely mention international human rights law? One possibility is that NHRIs rely more explicitly on international legal instruments when domestic legal structures and protections are weak. However, there appears to be very little evidence for this ‘substitution’ proposition. There is very little difference among countries that have been stable democracies since World War II (or independence), countries that have never been democratic, and all others in various stages and directions of regime transition in this regard. We created an index (ranging from 0 to 8) that combines the above transparency dimensions to capture the extent to which NHRI websites are transparent about international legal obligations, but find very little difference on this measure across regime types (see Table 10.3). By comparison, many more NHRIs focus on domestic human rights law. Of the 106 NHRIs with working websites, all of them mention domestic human rights law (statutory or constitutional), though only 47 provide an accessible layperson explanation of these protections. Eighty NHRIs provide working links to the actual texts of these laws. Surprisingly, transparency regarding domestic law is not correlated in any straightforward way with regime type. We created a measure of domestic legal transparency analogous to the international measure above, and Table 10.4 shows that there is practically no relationship between the regime type of the country that is home to the NHRI and the extent to which their website is clear about domestic human rights law.

Table 10.3 Transparency with Respect to International Human Rights Law 0 (no reference) Polity: 7.9

1 2 Polity: 3.7 Polity: 5.2

3 Polity: 2.5

4 Polity: 3.0

5 Polity: 6.1

6 7 Polity: 7.1 Polity: 7.3

Andorra Antigua & Barbuda Bermuda Botswana Greenland Hungary Iceland Israel Malta Mauritius Namibia Netherlands Pakistan Papua New Guinea

Bolivia Ecuador Fiji Haiti India Kenya Kosovo Maldives Morocco Nepal Oman Peru Romania So. Sudan Tanzania Ukraine

Bangladesh Jordan Kazakhstan Paraguay

Argentina Australia Azerbaijan Bosnia & Herzegovina Canada Croatia Cyprus Czech Republic El Salvador Finland Georgia Honduras Luxembourg Macedonia Malawi

Armenia Denmark Egypt Estonia Ethiopia Guatemala Lithuania Moldova Serbia & Montenegro Sri Lanka

Algeria Cameroon France Germany Greece Hong Kong Mongolia Nigeria Norway Panama Slovakia South Africa

Albania Austria Colombia Costa Rica Indonesia Nicaragua Palestine Portugal Senegal Togo Uganda Uzbekistan Zambia

8 Polity: 3.5

Afghanistan Kyrgyz Belgium Republic Chile Ireland Korea (South) Mexico N. Ireland, UK New Zealand Slovenia Thailand United Kingdom

Puerto Rico Samoa Spain Trinidad & Tobago

Venezuela

Malaysia Philippines Poland Sweden Tunisia

Note: ‘Polity’ refers to the average polity score from 2005–2010 for the countries in each category. Note: the 0–8 scale is created by summing the following sub-indices: *

*

*

* *

Does the NHRI website mention international law? (2=yes, a specific section clearly about IL obligations; 1 = some references but not a dedicated section; 0= no, none.) Does the NHRI indicate which if any international human rights agreements the country has ratified? (2=yes, appears exhaustive; 1 =yes, some but does not list all systematically; 0=no.) Does the NHRI post or provide links to the human rights treaty texts that the country has ratified? (2=yes, and link(s) is/are working; 1= yes, but link(s) do(es) not work; 0=no.) If the NHRI mentions international law, does it provide a ‘layperson’s’ explanation of its meaning? (1=yes; 0=no.) Does the NHRI provide information on filing, process and/or outcomes of international legal cases? (1=yes; 0=no.)

Source: Authors’ database, based on accessing each website during August–September 2011.

Table 10.4 Transparency with Respect to Domestic Human Rights Law 0 (no reference) Polity: 10 Cyprus

1 Polity: 8.1

2 3 Polity: 4.2 Polity: 5.4

4 Polity: 4.4

5 Polity: 1.3

6 (Max. reference) Polity: 6.8

Andorra Mongolia Nicaragua Norway Papua New Guinea Samoa Southern Sudan

Ethiopia Greenland Palestine Puerto Rico Senegal

Albania Botswana Fiji France Haiti Indonesia Kenya Kosovo Luxembourg Oman Pakistan Panama Poland Romania Trinidad and Tobago Tunisia Uzbekistan Zambia

Afghanistan Algeria Austria Azerbaijan Bermuda Bosnia & Herzegov. Canada Chile Costa Rica Croatia Czech Republic Denmark Egypt El Salvador Estonia Georgia Greece Honduras Hungary Iceland

Armenia Australia Bangladesh Belgium Bolivia Colombia Ecuador Finland Germany Guatemala Hong Kong Macedonia Malaysia Maldives Mexico Moldova Morocco Netherlands Nigeria Northern Ireland, UK

Antigua and Barbuda Argentina Cameroon Ireland Israel Kazakhstan Malawi Malta New Zealand South Africa

India Jordan Korea (South) Kyrgyz Republic Lithuania Mauritius Namibia Nepal Paraguay Portugal Tanzania Thailand Togo

Peru Philippines Serbia & Montenegro Slovakia Slovenia Spain Sri Lanka Sweden Uganda Ukraine United Kingdom Venezuela

Note: ‘Polity’ refers to the average polity score from 2005–2010 for the countries in each category. Note: the 0–6 scale is created by summing the following sub-indices: * * *

*

Does the NHRI mention domestic human rights law (constitutional or statutory)? (1=yes; 0=no.) If the NHRI mentions domestic law, does it provide a ‘layperson’s’ explanation of its meaning? (1=yes; 0=no.) Does the NHRI website provide links to specific domestic laws/legislation? (3=yes, and all link(s) working; 2 = yes, and some links working; 1 = yes, but link(s) not working; 0=no.) Does the NHRI provide information on filing, process and/or outcomes of domestic legal cases? (1=yes; 0=no.)

Source: Authors’ database, based on accessing each website during August–September 2011.

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A more systematic analysis of the data confirms that the democratic nature of the regime that is home to the NHRI does not predict a high degree of transparency with respect to either international or domestic law. Table 10.5 displays the results of a regression analysis of the correlates of legal transparency. The dependent variables in this table are the domestic law transparency score, the international law transparency score, the ratio of the latter to the former, and the total (the sum of the two scores). The average degree of democracy between 2005 and 2010 is not correlated with any of these. Similarly, transparency is not correlated with a country’s democracy score for 2010, the variance in democratic governance between 2005 and 2010, or whether a country has been a stable democracy, in transition or a stable autocracy since World War II. The two factors that seem most consistently associated with legal transparency are the age of the NHRI and the income level of the country in which it is situated. Older NHRIs are much less likely to be transparent about international legal obligations, and legal obligations in general. The younger the NHRI, the more likely it is to provide clear, accessible and thorough information about international legal obligations. Note that there is no relationship between NHRI age and domestic legal transparency alone, however. Furthermore, the higher the income level of the country home to the NHRI, the more likely it is to thoroughly and transparently discuss human rights law, particularly international human rights law.

4.2

Transparency about Practices

A key aspect of transparency is that citizens are able to access information about their government’s policies, and – even more essential – their actual practices. In the human rights area, access to information about the measures governments are taking to improve rights, as well as their shortcomings, is important if citizens are to effectively hold their government accountable. Since one of the primary purposes of NHRIs is to promote human rights, transparency should facilitate access to information about how well a government implements laws and respects the rights of its people in practice. Transparent NHRIs should be willing to post neutral and accurate reports of their human rights record on their website. But in contrast to the large number of NHRIs that are reasonably transparent about the law, few offer performance-based information on their websites. We found that 92 of the 106 NHRIs with working websites do not mention

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Table 10.5 Correlates of Legal Transparency Sample: NHRIs with websites Regression Coefficients (probability) Ratio of Domestic International international to law law domestic transparency transparency transparency International legal Transparency Domestic legal Transparency Income level Physical integrity index (2009) Internet penetration Rule of law Average democracy level (2005–2010) Ratification of human rights treaties NHRI age (logged) Number of Obs Adjusted R2

Total legal transparency

.209** (p=.011)

–

–

–

–

–

–

.442 (p=.102) −.377*** (p=.003)

.328** (p=.011) −.009 (p=.980) −.164 (p=.305)

.005 (p=.963) −.011 (p=.825)

.620 (p=.214) −.751*** (p=.001)

.030** (p=.015) −.434 (p=.213) .005 (p=.917)

.005 (p=.808) .662 (p=.129) .031 (p=.487)

−.003 (p=.592) .161 (p=.260) −.007 (p=.689)

.049* (p=.080) .241 (p=.705) .048 (p=.577)

2.60* (p=.072)

2.20 (p=.226)

.383 (p=.514)

6.56*** (p=.013)

.475 (p=.267) 101 .30

−1.36*** (p=.001) 101 .17

−.378** (p=.022) 86 .09

−1.09 (p=.157) 101 .20

Note: = significant at .10 level;

*

**

= significant at .05 level; = significant at .01 level. Source of dependent variables: Authors’ database, based on accessing each website during August–September 2011. (See notes to Tables 10.2 and 10.3 above.)

***

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their periodic reports to international human rights bodies. Six mentioned these reports, but did not provide working links so that private citizens could access them. Eight NHRIs do post these reports, and the links work (Germany, Sweden, France, Greece, Ireland, New Zealand, Maldives and South Korea). This kind of transparency does seem to be the special preserve of the most democratic countries: the average polity score for those that provided working access to their country reports was 9.5, while that for those with broken links was significantly lower (–2.8). Countries that do not mention the reports at all had an average polity score of 4.4. The eight countries that posted country reports are also the only ones that provide links to the oversight committees’ responses to these reports. And only Northern Ireland, Denmark, Germany, Sweden, New Zealand and the Maldives post ‘shadow reports’ by non-governmental groups that provide an independent assessment of government policies and practices. Furthermore, only seventeen countries provide information on international legal challenges to a State’s human rights practices.

4.3

Transparency about How to Lodge a Violation Complaint

One of the primary reasons transparency is important is that it enhances the possibility that people will be able to act to protect their rights and interests. NHRIs are not only valuable institutions for promoting knowledge about rights and practices, but also for assisting citizens in understanding their options if they feel their rights have been somehow violated. This can include instructions on how to lodge a complaint with the NHRI or other appropriate national bodies, as well as how to submit individual communications to international treaty bodies. We therefore examined all NHRI websites in search of evidence that they informed citizens of available steps – both domestic and international – to have the (alleged) violation addressed, considering both legal (judicial) as well as non-legal (mediation, investigation) options. We found that seventy-one NHRI websites made some mention of steps individuals could take if they felt their rights had been violated; thirty-five gave no guidance whatsoever. It is clear that NHRIs are much more focused on domestic rather than international options for addressing alleged rights violations. Fully sixtynine NHRI websites explain (with varying degree of clarity and completeness) what non-judicial steps individuals can take to have rights issues addressed. Another thirty explain what citizens can do to pursue

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Did not answer e-mail

30

Number of NHRIs

25 20 15 10 5 0 Upper Income

Figure 10.2

Upper Middle

Lower Middle

Lower Income

NHRI E-mail Responsiveness, by Country’s Income Level

their rights through the courts or other legal means. Few NHRIs reference international options, however. Only the websites of Cameroon and Thailand mention non-legal international options, such as contacting international NGOs or the UN OHCHR, while only Slovakia’s NHRI mentions international legal options individuals may pursue on its website. No matter how clear an NHRI tries to be in explaining available options for lodging complaints about rights violations, in many cases citizens will need further clarification or seek assistance in this process. As a final test of transparency in pursuing remedies for rights violations, we e-mailed every NHRI that had an e-mail contact address with the subject heading ‘rights question’ and the following message from a Yahoo! domain: ‘[i]f I feel my rights have been violated, how does the complaint process proceed? [signed] C.s.D’. First and foremost, we coded whether the NHRI answered this simple but vague question. Only thirty-three NHRIs answered within two months; sixty-four did not. Figure 10.2 shows that capacity of the NHRI might explain the likelihood of receiving an answer: the higher the income category of the country, the higher the proportion of e-mails sent, resulting in some kind of answer. Of the thirty-three that responded, seventeen gave a complete and fairly useful answer. Eight said we should have contacted another person or office; four NHRIs responded with an automatic message of a general

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nature; and eight provided us with a personal but very vague answer. To our knowledge, none forwarded our message to another destination; nor did any discourage us from further contact.

5. Is Transparency Correlated with Better Rights Practices? Our final question is whether transparency as measured by the existence and quality of information to which citizens have access matters for actual rights practices. Unfortunately our current data does not allow us to answer this question since we cannot sort out cause and effect. This is especially the case since all of our explanatory variables relating to transparency were measured in the summer and autumn of 2011, while most of the measures available on human rights practices are for the year 2009 at the latest. On the one hand, we cannot explain something observed in 2009 with a ‘cause’ observed in 2011. On the other hand, many of the websites explored in this research have been up and running for years, and it is at least possible if not likely that some of our measures of legal transparency were in place well before we collected our data. In the absence of a longer time series of data measuring transparency, the most we can do at this point is explore relationships between changes in practice over the past decade and recent measures of transparency. We do this by reporting correlations between recent transparency measures and recent human rights practices, controlling for practices in 2000. It is also important to admit that even in the best of circumstances, transparency – and especially the fairly narrow indicators of transparency we explore in this chapter – is likely to explain only a small fraction of any variance we see in rights practices over the past decade. Compounded with quite crude measures of rights practices themselves, we should not be surprised to see extremely weak correlations between transparency and rights improvements. This is in fact what we find. Table 10.6 reports a series of models that regress 2009 rights measures on rights measures in 2000 and our various measures of transparency.44 For all of these measures, we found no evidence of a positive correlation between the mere existence of an NHRI and a rights improvement. In one case – using a measure of general ‘empowerment’ that taps into the extent to which citizens are 44

These measures include: the existence of an NHRI; existence of a website; the quality of legal transparency, reporting on government practices and providing an e-mail answer advising about ‘what to do if my rights have been violated’.

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Table 10.6 Is Transparency Correlated with Better Rights Practices? Results of OLS regression (‘No’=less than 15% probability that the estimated coefficient is different from zero). Voice and Physical Workers’ Empowerment Accountability Integrity Torture rights (CIRI) (World Bank) NHRI

No

No

No

Given NHRI website: Given NHRI website: legal transparency Given NHRI website: reporting Given NHRI website: answering

.225* .084 No (p=.070) (p=.124) No .011 No (p=.144)

−.467* (p=.071) No

No

No

No

No

No

No

.052 (p=.129)

.187 (p=.142)

No

No

No

.220* (p=.055)

No

.119 (p=.109)

Note: all models include a control for the rights practice in 2000.

empowered vis-à-vis their governments – there is even a negative, albeit weak, correlation. In two cases involving physical integrity and torture (which are highly correlated with a Pearson’s correlation coefficient of .81) the presence of a website is associated weakly with improved outcomes. In the case of torture, legal transparency might be weakly correlated with a slight reduction in torture. NHRIs whose websites post human rights reports (and responses) and those that answer e-mail requests for information on what to do about a potential rights violation are associated with improved workers’ rights. As one might expect, the World Governance Indicator of ‘voice and accountability’, which measures perceptions of the extent to which a country protects certain civil and political rights such as freedom of expression and a free media, is somewhat higher for NHRIs that bother to answer e-mail inquiries. We reiterate our caution about these findings. But they do seem to point to

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the possibility that NHRIs alone are not enough. While it may be marginally useful to encourage transparency by explaining the law, by reporting on government practices, and by responding to requests for information about options in the case of possible violation, this type of human rights transparency may not be sufficient in and of itself to bring about short-term improvements in human rights practices. Future research should monitor the extent of transparency offered by NHRIs, to track whether in fact these weak results can be fortified over time.

6. Conclusion Notably, most countries have now established some type of a national human rights institution, and a large proportion of these NHRIs employ websites to disseminate human rights information. This in itself is striking, and in this respect NHRIs have followed the general trend toward e-government adopted by many regulatory and other governmental agencies. And as with other forms of e-government, wealthier and more democratic countries with a strong rule of law or high-quality civil service agencies are more likely to set up an NHRI website. Intuitively we might also expect countries with more internet users to expend more resources and effort in setting up government websites and providing more information on these sites, but we find this is only partly the case for NHRIs. Internet penetration of a country is not associated with the existence of an NHRI website, although countries with a higher percentage of internet users do tend to have NHRI websites that are more transparent, particularly with respect to domestic human rights law. While there seems to be a clear pattern in the setting up of NHRI websites, the quality and accessibility of these websites vary tremendously. NHRIs display significant differences in both the level and type of human rights transparency found on their websites. In contrast to the ‘isomorphism’ in NHRI structures identified by some studies, there appears to be no analogous ‘isomorphism’ with respect to NHRI websites. Governments may decide to establish an NHRI for any number of reasons, and the powers and independence given to an NHRI (and thus the extent to which it is permitted to be transparent) are often related to the original motive or purpose for supporting its initial creation. We believe it likely that only States already committed to improving their human rights practices will support greater NHRI transparency. And in fact, countries with better human rights practices that have ratified more international human rights conventions are slightly more likely to have

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NHRIs which provide greater legal transparency on their websites. Interestingly though, democratic governance per se does not seem to be related to the quality and accessibility of these websites. Additionally, we recognize that in some contexts NHRIs may be subject to significant government pressure to dissuade criticism of its practices, and thus a measure of NHRI independence from the government might well be an important factor in explaining the extent to which it is able to be transparent. One useful avenue for further research would be to examine this relationship between NHRI independence and transparency. As mentioned earlier, the UN OHCHR and other international and regional organizations have been at the forefront of the recent push for NHRI creation worldwide, largely because of the belief that these institutions are key to ensuring domestic implementation and promotion of international human rights obligations. Yet, as demonstrated above, a relatively small proportion of these institutions actually reference or provide information about international human rights obligations and processes. While this might be a bit disappointing, it is notable that those NHRIs that do rate high on international human rights transparency are institutions that have been established more recently. One possible reason that newly-established NHRIs are more likely to highlight international human rights is the fact that they may have been created in response to recent pressure from the UN OHCHR and other international bodies, who might be expected to emphasize these international obligations. While greater transparency by an NHRI of a government’s human rights practices may be desirable in and of itself, the more interesting question is whether NHRI transparency affects government compliance with a State’s human rights obligations. If, as advocates of transparency argue, transparency improves governance by providing disenfranchised citizens and groups with more information to push for political change, then we would expect increased human rights transparency to provide civil society with more information around which to organize and mobilize, providing leverage to increase pressure on governments. Greater transparency would thus encourage more organization and mobilization by civil society groups, who use this information to put pressure on the government to change its human rights practices. At this time, it is impossible to empirically assess this causal argument, but as we have shown NHRI transparency is only weakly correlated with human rights improvements over the past decade. We suspect this may partly be because the existence of an NHRI – even one that provides high-quality

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and accessible information about human rights law, practices and remedies – is not enough to guarantee short-term improvements in actual rights practices. While this type of transparency may be marginally useful and inherently desirable, its utility in changing government practices may also depend on a number of other factors, such as time, the presence of a strong civil society, a free press, or other political and civil liberties. Future research should continue to monitor the extent of transparency offered by NHRIs, to track whether in fact such transparency helps bring about longer-term improvements in human rights.

PART IV International Health Law

11 Institutional Transparency in Global Health Law-making: The World Health Organization and the Implementation of the International Health Regulations emily a. bruemmer and allyn l. taylor*

1. Introduction: Transparency and the World Health Organization Although still a relative novice in the international health law-making enterprise, over the past fifteen years the World Health Organization (WHO) has expanded its reach beyond its prior technical focus to become a powerful political force in global health. This expansion has brought challenges for the WHO as an institution evolving to accommodate this new role of international law-maker. One challenge is building on a positive trend of greater institutional transparency, which will ensure that the WHO maintains legitimacy in its legislative endeavours and thus accountability to the public that it serves. This chapter will examine the WHO and its efforts to build institutional transparency in its law-making ventures, focusing particularly on the WHO’s response to the H1N1 pandemic in 2009 and the implementation of transparency mechanisms within the International Health Regulations (IHR). In 2005, the World Health Assembly, the legislative body of the WHO, adopted a revised version of the IHR, which control when a country identifies a potential ‘public health emergency of international concern’ and provide a ‘coordinated international response’ to * Professor Taylor was the senior legal adviser for WHO from 2008–2011 for the drafting and negotiation of the WHO Global Code of Practice on the International Recruitment of Health Personnel and the draft guidelines on Implementation of the WHO Global Code of Practice on the International Recruitment of Health Personnel. She also lectures in a WHO/O’Neill Institute implementation course on the International Health Regulations.

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the spread of disease.1 The revised Regulations were put to a first, important test during the 2009 H1N1 pandemic, a major public health event that caused widespread alarm in a world unprepared for an influenza pandemic on a global scale. The chapter will begin with a discussion of transparency in the international law context, focusing on transparency as an instrumental value with the potential to address the ‘democratic deficits’ that some international legal scholars identify as inherent in international organizations like the WHO. Considering the operation of the IHR during the H1N1 pandemic, it will next examine the criticisms levelled at the WHO for lack of transparency. The chapter will deal with the IHR’s establishment of the independent Review Committee, which analyzed the implementation of the IHR and the WHO’s response to the pandemic. The chapter concludes that the procedural reporting requirements built into the revised IHR provided much-needed transparency in the aftermath of the H1N1 pandemic. This chapter also considers the trend of increased law-making activity – and the inclusion of greater transparency mechanisms within international agreements – by the WHO. The success of the IHR’s procedural reporting mechanisms provides a useful transparency framework that the WHO can apply to other institutional programmes, such as the WHO’s relationships with independent experts or the administration of partnerships and hosting arrangements with private organizations. Finally, this chapter hypothesizes how future international health agreements can incorporate transparency-optimizing provisions.

2. Transparency and International Law-making Institutions In order to incorporate transparency mechanisms into institutional design, understanding transparency’s origins and importance to global health law-making is crucial. From historical definitions, dating back to Immanuel Kant and Jeremy Bentham, comes a multitude of modern scholarship, offering disparate definitions, varied goals, and even disagreement on the proper subject of transparency. Transparency may be an instrumental value rather than an intrinsic goal.2 For example, Abram 1 2

WHO, International Health Regulations (2005) (Geneva: WHO Press, 2nd edn, 2008), art. 1. ‘[T]here may be an optimal level of transparency that is less than maximum transparency’. David Heald, ‘Transparency as an Instrumental Value’, in Christopher Hood/David Heald (eds.), Transparency: The Key to Better Governance, Proceedings of the British Academy 135 (Oxford University Press, 2006), 59–73, 60.

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and Antonia Handler Chayes presented transparency as the means to increase compliance in treaty regimes by providing clarity on the ‘norms, rules, and procedures’ of the regime, as well as the treaty parties’ ‘policies and activities’.3 When considering transparency as ‘a variable of institutional design’,4 international legal scholars should turn to the underlying question of why transparency is – or isn’t – desirable. Opacity may be more advantageous than transparency, particularly during delicate negotiations5 or in legislative bodies where representatives ‘have a greater incentive to take positions that will demonstrate loyalty to a constituency’.6 Transparency is of particular relevance to international health law-making, given the history and importance of surveillance in public health.7 Public health presents specific challenges because transparency in international legal design may conflict with other values, including individual privacy.8 Instrumental transparency thus contrasts with transparency as an objective or even as a human right. In 1946, the UN General Assembly declared that ‘[f]reedom of information is a fundamental human right and is the touchstone of all the freedoms to which the United Nations is consecrated’.9 The increasing prevalence of freedom of information

3

4

5

6

7

8

9

Abram Chayes/Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge Mass.: Harvard University Press, 1995), 135. Barbara Koremenos, ‘Open Covenants, Clandestinely Arrived At’, International Theory 5 (forthcoming) (emphasis in original). See e.g. Ronald B. Mitchell, ‘Sources of Transparency: Information Systems in International Regimes’, International Studies Quarterly 42 (1998), 109–130, 112–113; see also Koremenos, ‘Open Covenants’ 2004 (n 4), 16 (positing that more ‘transparent’ negotiations are ‘more likely to (1) result in outcomes that are more likely to be sabotaged, (2) result in more socially inefficient use of resources by interest groups, and (3) lengthen the bargaining process’.). David Stasavage, ‘Does Transparency Make a Difference? The Example of the European Council of Ministers’, in Hood/Heald (eds.), Transparency 2006 (n 2), 165–179, 168. See e.g. Lawrence O. Gostin/Benjamin E. Berkman, ‘Pandemic Influenza: Ethics, Law, and the Public’s Health’, Administrative Law Review 59 (2007), 121–175, 154 (‘[s]urveillance is the backbone of public health, providing essential data to understand the epidemic threat and inform the public’). See Christopher Hood, ‘Transparency in Historical Perspective’, in Hood/Heald (eds.), Transparency 2006 (n 2), 3–23, 20; see also Gostin/Berkman, ‘Pandemic Influenza’ 2007 (n 7), 156 (discussing ‘privacy risks’, but noting that ‘data protection statutes (. . .) often make exceptions for surveillance in the context of a public health threat’). UNGA, Calling of an International Conference on Freedom of Information, A/RES/59(I), UN Doc A/229, A/261, 14 December 1946, 95. This right is even more widespread when considered a corollary of the right to freedom of expression. See e.g. Convention for the Protection of

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laws10 demonstrates a growing international commitment to openness in order to promote governmental accountability and to permit citizens to access information relevant to decision-making processes. Yet international organizations should also consider transparency’s costs in order to structure mechanisms that preserve other important values. Transparency’s importance is increasingly recognized because the growing power and capability of international organizations has led to alarm regarding a ‘democratic deficit’ as States surrender sovereignty to international organizations acting in the interest of natural persons who did not nominate them and have little or no role in organizational oversight.11 To integrate greater transparency into global governance, one proposed solution is the development of a ‘global administrative law’ approximating national regulatory systems.12 Thomas Hale suggests that ‘[i]f “democracy deficit” is a global governance catchphrase, then “transparency” is its buzzword solution’.13 But is transparency, the increasingly proposed solution to the accountability dilemma,14 more than a buzzword? International organizational commitments to transparency may require further implementation and national follow-up.15 Characterization of ‘transparency’ as a ‘buzzword’ suggests verbal

10

11

12

13

14

15

Human Rights and Fundamental Freedoms (European Convention on Human Rights), 4 November 1950, 213 UNTS 221, art. 10; American Convention on Human Rights: ‘Pact of San Jose´, Costa Rica’, 22 November 1969, 1144 UNTS 123, art. 13(1); African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 UNTS 217, art. 9(1). Patrick Birkinshaw, Freedom of Information: The Law, the Practice, and the Ideal (Cambridge University Press, 4th edn, 2010), 498. See e.g. Thomas Blanton, ‘The Struggle for Openness in the International Financial Institutions’, in Ann Florini (ed.), The Right to Know: Transparency for an Open World (New York: Columbia University Press, 2007), 243–278, 243 (‘[o]ne of the greatest challenges to democratic governance in the globalized world lies in the growing gap – the “democratic deficit” – between the power of the international organizations to affect human lives throughout the planet and the power of the people so affected to exercise any control over those institutions’). Daniel C. Esty, ‘Good Governance at the Supranational Scale: Globalizing Administrative Law’, Yale Law Journal 115 (2006), 1490–1562, 1514 (arguing for ‘a regime of carefully established rulemaking procedures’ to answer legitimacy questions surrounding the delegated decision-making of supranational governing bodies). Thomas N. Hale, ‘Transparency, Accountability, and Global Governance’, Global Governance 14 (2008), 73–94, 73. ‘If voice and accountability are to exist across borders, decision makers must explain their actions and decisions to the broader public whose destiny is thereby affected, and they must allow that public greater say,’ Ann Florini, The Coming Democracy (Washington DC: Brookings, 2003), 16. Ibid., 85–86 (‘intergovernmental organizations have been under severe pressure to join the transparency parade. Their rhetoric has been most impressive as their staffs vie to outdo one another in proclaiming their devotion to disclosure’).

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commitments have outstripped implementation of institutional commitments through concrete, functioning mechanisms. The WHO must take care to implement effective transparency mechanisms in order to ensure legitimacy.

3. The International Health Regulations and the 2009 H1N1 Pandemic 3.1

The WHO, Public Health Transparency and the WHO as New Law-maker

The WHO, as the ‘largest international health agency’, has ‘wide-ranging responsibilities to address global public health concerns’.16 Article 55 of the United Nations Charter pledges to promote ‘solutions to international economic, social, health, and related problems’. The WHO’s Constitution establishes expansive legal authority in the area of global health standard-setting, starting with the mandate of article 1: the ‘attainment by all peoples of the highest possible level of health’.17 The Constitution further specifies that the World Health Assembly ‘shall have authority to adopt conventions or agreements with respect to any matter within the competence of the Organization’.18 Allyn L. Taylor argues that the broad scope of article 19 read together with article 1 confers on the WHO ‘the legal authority to serve as a platform for (. . .) agreements that potentially address all aspects of national and global public health, as long as advancing human health is the primary objective’.19 The World Health Assembly also has authority to ‘make recommendations (. . .) with respect to any matter within the competence of the Organization’20 and to adopt Regulations in specified areas of traditional public health regulation21 – ‘a fairly unique lawmaking device in the international system’.22 Although public health was ‘one of the earliest fields of international cooperation and one of the first domains in which an intergovernmental 16

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Allyn L. Taylor, ‘International Law and Public Health Policy’, in Kris Heggenhougen/ Stella Quah (eds.), International Encyclopedia of Public Health, vol. 3 (San Diego: Academic Press, 2008), 667–678, 674. Constitution of the World Health Organization, 22 July 1946, 14 UNTS 185, art. 1; see also Taylor, ‘International Law and Public Health Policy’ 2008 (n 16), 674. WHO Constitution, 1946 (n 17), art. 19 (emphasis added). Taylor, ‘International Law and Public Health Policy’ 2008 (n 16), 674. WHO Constitution, 1946 (n 17), art. 23. 21 Ibid., art. 21. Taylor, ‘International Law and Public Health Policy’ 2008 (n 16), 675.

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organization was created’, until quite recently the ‘scope of international legal cooperation’ in public health was ‘highly limited’.23 As described below, from its founding the WHO assumed management of ‘the international legal regime for the control of the international spread of diseases’.24 Despite the WHO’s wide mandate, it traditionally neglected international law-making as a tool of health policy, focusing instead on technical activities,25 and has only recently begun to use its broad constitutional authority to develop international legal instruments.26 Globalization has led to an expansion of global health law and the rise of global health as a dominant diplomacy issue.27 The processes of change brought about by increasing global integration are ‘restructuring human societies, ushering in new patterns of health and disease, and reshaping the broad determinants of health, including socio-economic, cultural, and environmental conditions’.28 The ‘integration and the internationalization of the determinants of health’29 are factors in the ‘rapid decline in the practical capacity of sovereign states to address public health challenges through unilateral national action alone’.30 In particular, ‘the globalization of trade, travel, migration, information and lifestyles has obscured the traditional distinction between national and global health’.31 Thus there is increased need for ‘new, formalized frameworks for international cooperation’.32 International law, particularly treaty law, has ‘received new prominence’ in global health because ‘states increasingly recognize the need for international cooperation to attain national public health objectives for which domestic law and other policy responses are increasingly inadequate’.33

23 25

26 27

28 29

30 31 32

Ibid., 667. 24 Ibid., 675. Allyn L. Taylor, ‘Making the World Health Organization Work: A Legal Framework for Universal Access to the Conditions for Health’, American Journal of Law and Medicine 18 (1992), 301–346, 317. Taylor, ‘International Law and Public Health Policy’ 2008 (n 16), 674. Allyn L. Taylor/Karen C. Sokol, ‘The Evolution of Global Health Law in a Globalized World’, in Giuliana Ziccardi Capaldo (ed.), The Global Community Yearbook of International Law and Jurisprudence 2007, vol. 1 (Dobbs Ferry: Oceana Publications, 2008), 19–37, 22. Ibid., 22. Lawrence O. Gostin/Allyn L. Taylor, ‘Global Health Law: A Definition and Grand Challenges’, Public Health Ethics 1 (2008), 53–63, 54. Taylor, ‘International Law and Public Health Policy’ 2008 (n 16), 669. Taylor/Sokol, ‘The Evolution of Global Health Law in a Globalized World’ 2008 (n 27), 22. Taylor, ‘International Law and Public Health Policy’ 2008 (n 16), 669. 33 Ibid.

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After over fifty years of neglect of international law as a tool of health policy, in 2003 the WHO member States adopted the first treaty negotiated under the WHO’s auspices, the WHO Framework Convention on Tobacco Control (FCTC).34 In another binding standard-setting initiative, the World Health Assembly adopted the revised IHR in 2005.35 The WHO has also recently expanded the development of non-binding legal instruments for global health governance. In May 2010, the World Health Assembly adopted the WHO Global Code of Practice on the International Recruitment of Health Personnel (Global Code),36 the first non-binding code of practice adopted by the World Health Assembly since the 1980 International Code of Marketing Breast Milk Substitutes.37

3.2

The International Health Regulations

The IHR are ‘the only set of international legal rules binding on WHO member States concerning the control of infectious diseases’.38 The purpose of the IHR is to provide a framework for national action and global cooperation to identify and respond to potential health emergencies of international concern and to mobilize the resources of the international community to contain and combat these emergencies, ‘provid[ing] a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade’.39 The IHR (2005) replaced a long-standing previous version of the Regulations that was widely regarded as obsolete. Globalization of infectious disease 34

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WHO Framework Convention on Tobacco Control, 21 May 2003, 2302 UNTS 166 (FCTC). For a general overview, see Ruth Roemer/Allyn L. Taylor/Jean Lariviere, ‘Origins of the WHO Framework Convention on Tobacco Control’, American Journal of Public Health 95 (2005), 936–938. WHO, Fifty-eighth World Health Assembly, Revision of the International Health Regulations, WHA58.3, 16 May 2005. WHO, Sixty-third World Health Assembly, WHO Global Code of Practice on the International Recruitment of Health Personnel, WHA63.16, 21 May 2010. See generally Allyn L. Taylor/Ibadat S. Dhillon, ‘The WHO Global Code of Practice on the International Recruitment of Health Personnel: The Evolution of Global Health Diplomacy’, Global Health Governance 5 (2011), 1–24; Allyn L. Taylor et al., ‘Stemming the Brain Drain – A WHO Global Code of Practice on International Recruitment of Health Personnel’, New England Journal of Medicine 365 (2011), 2348–2351. David P. Fidler, SARS, Governance and the Globalization of Disease (New York: Palgrave Macmillan, 2004), 32. WHO, International Health Regulations (2005) 2008 (n 1), art. 2.

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highlighted the inadequacies of the old Regulations’ limited scope and lack of reporting mechanisms. The revised IHR were a dramatic overhaul of the international legal regime governing infectious diseases and the H1N1 pandemic was a dramatic first test for the revised Regulations. The fourth World Health Assembly adopted the first iteration of the IHR in 1951, known as the International Sanitary Regulations (or ‘WHO Regulations No. 2’), which upon revision in 1969 became the IHR.40 The IHR are based on a historic regime adopted by the WHO’s organizational predecessors, dating back to 1851, when the First International Sanitary Conference was held in Paris to harmonize quarantine measures across Mediterranean ports.41 Under the WHO’s Constitution, the World Health Assembly has authority to adopt regulations on ‘sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease’,42 which are then binding on all members after adoption under article 22.43 The IHR were adopted under this authority and are thus binding international law for all member States that do not reject them – which currently includes 195 countries (all the WHO member States and the Holy See).44 As adopted in 1969, the IHR only applied to outbreaks of six ‘quarantinable diseases’,45 later narrowed to three: cholera, plague and yellow fever.46 Increased globalization of infectious disease highlighted the inadequacy of the IHR’s narrow applicability and reporting mechanisms. By the 1990s, critics of the IHR had declared that the Regulations were an ‘ineffective’ means of tackling global health challenges and that the IHR’s surveillance system had ‘broken down’, with member States

40

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42 44

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Taylor/Sokol, ‘The Evolution of Global Health Law in a Globalized World’ 2008 (n 27), 21. Allyn L. Taylor, ‘Controlling the Global Spread of Infectious Diseases: Toward a Reinforced Role for the International Health Regulations’, Houston Law Review 33 (1997), 1327–1362, 1340–1341 (internal citations omitted). WHO Constitution, 1946 (n 17), art. 21. 43 Ibid., art. 22. South Sudan, which became the WHO’s newest member on 27 September 2011, will be bound by the IHR unless it rejects them within twelve months of membership. WHO, International Health Regulations (2005) 2008 (n 1), art. 60. Ibid., foreword. Louse-borne typhus and louse-borne relapsing fever were removed in 1969, followed by smallpox after its eradication in 1981. Gian Luca Burci/Claude-Henri Vignes, World Health Organization (The Hague: Kluwer Law International, 2004), 135; David P. Fidler, International Law and Infectious Diseases (Oxford: Clarendon Press, 1999), 62. WHO, International Health Regulations (1969) (Geneva: WHO, 3rd annotated edn, 1983), art. 1; WHO, International Health Regulations (2005) 2008 (n 1), foreword.

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‘regularly fail[ing] to notify WHO’ due both to inadequate surveillance and fear of excessive countermeasures.47 In 1995, the World Health Assembly called for the revision of the IHR and began a ten-year review process culminating in the adoption of the revised Regulations. The Regulations underwent reconceptualization as they were updated for a new era facing the realization that infectious diseases could not be addressed at the national level – nor could international cooperation be restricted to formal ports of entry. The new IHR dramatically expanded both the scope of diseases subject to the IHR and arguably the scope of the WHO’s authority to issue recommendations guiding national and international action and coordination. The revised IHR apply to any broadly defined ‘event’ which must be reported to the WHO when it constitutes a potential public health emergency of international concern (PHEIC), identified through the use of a ‘decision instrument’.48 Certain diseases, including ‘[h]uman influenza caused by a new subtype’, always lead to notification.49 The IHR provide a comprehensive legal framework to globally coordinate disease detection, reporting and response. Each State party must designate a National IHR Focal Point to communicate with the WHO.50 When States parties determine the existence of a potential PHEIC, they are obligated to notify the WHO within 24 hours. Although both the 1969 and the 2005 Regulations include public health measures at departure from and arrival in participating States, the updated Regulations require reporting a potential PHEIC within a State’s territory and require States to report within 24 hours a potential PHEIC wholly contained within another State’s territory, should that State fail to report.51 The WHO Director-General then determines the existence of a PHEIC and the WHO may issue both temporary and standing recommendations to address the public health emergency.52 Before the Director-General declares a PHEIC and issues recommendations, they must hear the views of the Emergency Committee, which is convened from an expert roster.53 While the Emergency Committee may relay its views on whether or not an event constitutes a PHEIC and the proposed issuance, modification, extension or termination of temporary recommendations, the Director-General has the final authority on such matters. 47

48 50 53

David P. Fidler, ‘Return of the Fourth Horseman: Emerging Infectious Diseases and International Law’, Minnesota Law Review 81 (1997), 771–868, 844. WHO, International Health Regulations (2005) 2008 (n 1), annex 2. 49 Ibid. Ibid., art. 4(1). 51 Ibid., arts. 6 and 9. 52 Ibid., arts. 12 and 15. Ibid., arts. 47–49.

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3.3

Overview of the H1N1 Pandemic

The 2009 H1N1 pandemic was an important test for the revised IHR because it was the first PHEIC declared by the WHO since the IHR came into force, and therefore the first test case of many of the IHR’s provisions, including provisions related to the Emergency Committee. Starting in February 2009, the first cases of H1N1 influenza were reported in Mexico.54 On 12 April, Mexico’s National IHR Focal Point reported to the Pan American Health Organization (PAHO) Regional Focal Point that, under the IHR Decision Instrument, the cases of flu could constitute a potential PHEIC.55 The virus was next identified in California, where the Centers for Disease Control (CDC) confirmed cases of what was referred to at the time as ‘swine influenza A (H1N1)’.56 The international community anticipated that the Regulations were about to be put to the test. The influenza A (H1N1) pandemic became the first declared PHEIC under the revised IHR. This pandemic was not the influenza pandemic that the world had expected. After a 1997 outbreak of H5N1 influenza (‘avian influenza’) spreading from birds to humans in Hong Kong, then re-emergence of avian influenza in 2003 and 2004, most pandemic preparation concentrated on an anticipated H5N1 pandemic.57 In addition to fears about the H5N1 virus, the 2003 outbreak of Severe Acute Respiratory Syndrome (SARS), which had spread across 26 countries and killed over 700 individuals, loomed in the minds of public health officials.58 Fears of influenza pandemic were also unquestionably influenced by the spectre of the 1918–1919 flu pandemic.

54

55 56

57

58

WHO, Sixty-fourth World Health Assembly, Implementation of the International Health Regulations (2005): Report of the Review Committee on the Functioning of the International Health Regulations (2005) in relation to Pandemic (H1N1) (2009), Report by the Director-General, A64/10, 5 May 2011 (IHR Report), 51. Ibid. Ibid., 52; see also Centers for Disease Control and Prevention, ‘The 2009 H1N1 Pandemic: Summary Highlights, April 2009-April 2010’, 2010, available at: www.cdc. gov. For an early account of the virus’s spread, see Laurie Garrett, ‘The Path of a Pandemic’, Newsweek (1 May 2009). WHO, ‘Avian Influenza’, updated April 2011, available at: www.who.int; Centers for Disease Control and Prevention, ‘The 2009 H1N1 Pandemic’ 2010 (n 56) (‘experts believed that avian influenza A (H5N1) viruses posed the greatest pandemic threat (. . .) pandemic preparedness efforts were largely based on a scenario of severe human illness caused by an H5N1 virus’). WHO, IHR Report, 2011 (n 54), 29.

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On 25 April 2009, fourteen days after Mexico’s initial reporting to the PAHO Regional Focal Point, the WHO Director-General Dr Margaret Chan convened the first meeting of the Emergency Committee and issued a declaration of a PHEIC – the first under the new IHR.59 The next day, the United States declared a national public health emergency.60 By 29 April, there were 148 identified cases in 9 countries, with ‘many more (. . .) under investigation’.61 There was worldwide concern about a new global pandemic. States began to stockpile influenza vaccine. The situation escalated and on 11 June the Director-General declared a pandemic, stating that the virus had moved from influenza pandemic alert phase five to phase six (the ‘pandemic phase’).62 It was the first declaration of influenza pandemic in forty years.63 As discussed above, the IHR provide a framework for involving outside experts, who are listed on an ‘IHR Expert Roster’ compiled by the Director-General,64 as consultants to the WHO on Expert Advisory Panels and Committees. The IHR (2005) mandate that the DirectorGeneral will establish an Emergency Committee, composed in part of experts from the IHR Expert Roster.65 The mission of the Emergency Committee is to provide its views on: ‘(a) whether an event constitutes a public health emergency of international concern; (b) the termination of a public health emergency of international concern; and (c) the proposed issuance, modification, extension or termination of temporary recommendations’.66 The Emergency Committee will ‘prepare following each meeting a brief summary report of its proceedings and deliberations, including any advice on recommendations’.67 The Committee serves in a consultative role and advises the Director-General, who makes all final determinations on the existence of a PHEIC and on the WHO’s response.68 59

60 61 62

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WHO, ‘Swine Influenza’, 25 April 2009, available at: www.who.int; Lawrence O. Gostin, ‘Influenza A (H1N1) and Pandemic Preparedness under the Rule of International Law’, Journal of the American Medical Association 31 (2009), 2376–2378, 2376. Centers for Disease Control, ‘The 2009 H1N1 Pandemic’ 2010 (n 56). WHO, IHR Report, 2011 (n 54), 55. WHO, ‘World Now at the Start of 2009 Influenza Pandemic’, 11 June 2009, available at: www.who.int; for a description of the pandemic alert phases, see WHO, ‘Global Alert and Response (GAR): Current WHO Phase of Pandemic Alert for Pandemic (H1N1) 2009’, available at: www.who.int. David P. Fidler, ‘H1N1 after Action Review: Learning From the Unexpected, the Success and the Fear’, Future Microbiology 4 (2009), 767–769, 767. WHO, International Health Regulations (2005) 2008 (n 1), art. 47. Ibid., arts. 47, 48 and 49. 66 Ibid., art. 48(1). 67 Ibid., art. 49(3). Ibid., arts. 12 and 49(5).

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The IHR do not discuss the Emergency Committee’s relationship with the public nor specify how transparent the WHO must be either in the selection of the Emergency Committee or in the communication of its views. Article 49(6) does include provisions for the communication of ‘any health measure taken by the State Party concerned [and] any temporary recommendation (. . .) together with the views of the Emergency Committee’ to State parties and then ‘subsequently’ to ‘the general public’.69 The Regulations do not indicate whether the identities of the experts serving on the Emergency Committee are to be made public.

3.4

Transparency Concerns and the WHO

In the wake of the H1N1 pandemic, the WHO faced criticism regarding its leadership, including accusations that its institutional processes lacked transparency. The criticism regarding lack of transparency focused primarily on two issues: (1) the WHO’s decision to keep confidential the names of the experts on the Emergency Committee, and (2) the WHO’s mechanisms for evaluating the conflicts of interest of those experts. Much of this criticism came from Europe, where governments spent significant amounts of money on vaccines for a pandemic that was far less deadly than predicted. A European Parliament report estimated that Great Britain spent EUR 1300 million and France spent EUR 990 million, compared with EUR 87 million spent on seasonal influenza.70 In 2010, the British Medical Journal (BMJ) partnered with the Bureau of Investigative Journalism to release a report entitled ‘WHO and the Pandemic Flu “Conspiracies”’, citing ‘troubling questions about how WHO managed conflicts of interest among the scientists who advised its pandemic planning, and about the transparency of the science underlying its advice to governments’.71 The article raised questions about improper pharmaceutical industry influence. A concurrently published BMJ editorial called on the WHO to address the accusations and ‘restore its credibility and public trust’.72 69 70

71

72

Ibid., art. 49(6). European Parliament, Committee on the Environment, Public Health and Food Safety, Report on Evaluation of the Management of H1N1 Influenza in 2009–2010 in the EU, A7–0035/2011, 2 September 2011. Deborah Cohen/Philip Carter, ‘WHO and the Pandemic Flu “Conspiracies”’, British Medical Journal 340 (2010), 1274–1279. Fiona Godlee, ‘Conflicts of Interest and Pandemic Flu’, British Medical Journal 340 (2010), 1256–1257.

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The WHO also faced criticism from the Council of Europe, which passed Resolution 1749 and Recommendation 1929, both entitled ‘Handling of the H1N1 Pandemic: More Transparency Needed’.73 This followed the early June issuance of an identically titled report from its Social Health and Family Affairs Committee.74 The Resolution specifically condemned the WHO’s refusal to release the names and potential conflicts of the Emergency Committee.75 The Report, echoing Resolution 1749, noted ‘grave shortcomings (. . .) regarding the transparency of decision-making processes relating to the pandemic’ that led to concerns about commercial influence from the pharmaceutical industry.76 In Recommendation 1929, the Council of Europe identified ‘an urgent need for a thorough review of recent decisions taken by public health authorities at international, European and national level[s] in the framework of the H1N1 influenza pandemic, given that a lack of transparency in public decisions undermines democratic principles and good governance’.77 Such criticism of the WHO, which had previously held a reputation as a trusted technical organization in the field of global health, was unprecedented and had the potential for severe negative effects on the WHO’s reputation. The WHO’s future credibility was at stake.

4. Transparency and the IHR: The Success of Built-in Independent Reporting Mechanisms As a preliminary response to these serious accusations, the WHO released a letter to the BMJ’s editors, directing them to the then ongoing Review Committee, which had undertaken the important task of analysing the WHO’s pandemic response in addition to reviewing the functioning of the IHR overall.78 The Review Committee faced significant pressure because it was imperative that it respond transparently and effectively to the charges levelled at the WHO by the Council of Europe, the editors of the BMJ, and other constituencies in global health. Its task was to ensure transparency so that the IHR could retain legitimacy. 73

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75 77 78

EU, Council of Europe, Resolution 1749, 24 June 2010; EU, Council of Europe, Recommendation 1929, 24 June 2010. Council of Europe, Parliamentary Assembly, Provisional Version: The Handling of the H1N1 Pandemic: More Transparency Needed, Report, 4 June 2010. Council of Europe, Resolution 1749, 2010 (n 73). 76 Ibid. Council of Europe, Recommendation 1929, 2010 (n 73). WHO, ‘WHO Director-General’s Letter to BMJ Editors, Statement’, 8 June 2010, available at: www.who.int.

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States had assumed binding obligations under the IHR, limiting their sovereignty by agreeing to report national health emergencies to promote international disease control.79 The danger for such legal instruments is that non-transparency can undermine their perceived legitimacy.80 Ultimately, the Review Committee’s independent report provided an effective level of transparency with regard to the WHO’s H1N1 pandemic response and a greater microscope into the institutional process surrounding the Emergency Committee and its PHEIC response. Importantly, the final report was made available to the general public, not just the WHO member States. Notably, the previous versions of the IHR did not include provisions for external review. The 1969 Regulations required States to report to the WHO on covered diseases at the national level, which the WHO then used to ‘prepare an annual report on the functioning of these Regulations and on their effect on international traffic’, which was to be published along with epidemiological data.81 However, the inclusion of an independent evaluative mechanism in the IHR (2005) was without precedent for the IHR and for the WHO. The IHR (2005) require the Director-General to establish a Review Committee, which, like the Emergency Committee, must be appointed from the IHR Expert Roster or from ‘other expert advisory panels’ of the WHO.82 The Review Committee is subject to the WHO Advisory Panel Regulations and its members are only to be appointed for one session, the ‘date and duration’ determined by the Director-General.83 Article 50 charges the Review Committee with making technical recommendations and advice regarding amendments to the IHR, standing recommendations, and the functioning of the Regulations. In addition, article 54 tasks the Health Assembly with reviewing and reporting on the functioning of the IHR (2005): ‘[t]he Health Assembly shall periodically review the 79

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Rebecca Katz/Julie Fischer, ‘The Revised International Health Regulations: A Framework for Global Pandemic Response’, Global Health Governance 3 (2010), 1–18, 8 (‘States Parties conceded some previously sacrosanct points of sovereignty under the IHR (2005) with the expectation that greater transparency and accountability might insulate increasingly interdependent economies against the costs of public health crises’); see also Leonard S. Rubenstein, ‘Cooperation and Tension in Regional and Global Infectious Disease Surveillance’, United States Institute of Peace: Peace Brief 34 (2010), 1–5, 1–2. See generally Steve Charnovitz, ‘Transparency and Participation in the World Trade Organization’, Rutgers Law Review 56 (2004), 927–959. WHO, International Health Regulations (1969) 1983 (n 46), art. 13. WHO, International Health Regulations (2005) 2008 (n 1), art. 50. 83 Ibid.

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functioning of these Regulations. To that end it may request the advice of the Review Committee, through the Director-General. The first such review shall take place no later than five years after the entry into force of these Regulations’.84 Therefore, although it is the World Health Assembly’s duty to review the IHR, the text of the IHR already contemplates the involvement of an external Review Committee to analyze its structures and effectiveness. The 2009 pandemic coincided with this five-year mandatory reporting deadline. In the wake of critical reports of the WHO’s leadership, the Director-General proposed convening the Review Committee to assess both the implementation of the IHR and the WHO’s actions during the H1N1 pandemic. The Review Committee was composed of an eminent panel of international experts and chaired by Harvey Fineberg, President of the Institute of Medicine.85 The Review Committee maintained standards of transparency that were critical to its internal deliberative process. The IHR mandate that the Director-General ‘shall invite Member States, the United Nations and its specialized agencies and other relevant inter-governmental organizations or NGOs in official relations with WHO to designate representatives to attend the Committee sessions’.86 These representatives can submit memoranda and make statements.87 In addition, ‘[f]or transparency, [the Review Committee plenary sessions] were open to the media’,88 and ‘[e]veryone present heard the same testimony that the Committee heard’.89 While the deliberative sessions were restricted to Committee Members, the Committee’s plenary sessions were open to the public.90 The Review Committee’s report was highly anticipated by the global health community and received wide attention even before the final

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Ibid., art. 54(2). In addition to the transparency mechanism that provides for review of the entire International Health Regulations (2005), another is provided in art. 54(3): ‘WHO shall periodically conduct studies to review and evaluate the functioning of Annex 2 [containing the decision instrument]. The first such review shall commence no later than one year after the entry into force of these Regulations. The results of such reviews shall be submitted to the Health Assembly for its consideration, as appropriate’. However, in contrast to the independent external Review Committee, this is an internal review. WHO, IHR Report, 2011 (n 54), 25–26. WHO, International Health Regulations (2005) 2008 (n 1), art. 51(2). 87 Ibid. WHO, IHR Report, 2011 (n 54), 9. 89 Ibid., 6. Ibid., 9 ‘[t]hroughout its deliberations, the Committee has aimed to be thorough, systematic, open and objective’.

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version’s release on 5 May 2011.91 In addition to providing a comprehensive overview of influenza A (H1N1) and the pandemic response, the Report addressed the main transparency-related criticisms of the WHO’s response. Importantly, the Committee found no evidence of malfeasance or improper influence.92 First, the Report dealt with whether the WHO should have disclosed the identities of the Emergency Committee members. As previously mentioned, the WHO followed its usual policy and did not reveal the identities of Emergency Committee experts until after declaring the pandemic’s end on 10 August 2010 – over a year after the declaration of the PHEIC.93 The Report found that ‘[a]lthough confidentiality represented an understandable effort to protect the members from external pressures, this paradoxically fed suspicions that the Organization had something to hide’.94 The Committee recommended that the ‘identity and relevant background, experience and relationships’ of future potential Emergency Committee appointees should be ‘publicly disclosed (. . .) with an opportunity for public comment during a period of initial, probationary service’.95 This would enable all of the WHO’s diverse constituencies to screen the appointments of Emergency Committee members – their identities and their potential conflicts of interest – and ensure that individuals making decisions regarding future pandemics do so in an atmosphere of transparency. The Review Committee also examined the WHO’s procedure for checking experts’ conflicts of interests and found a ‘[l]ack of a sufficiently robust, 91

92 93

94

On the release of a March 2011 draft report, the New York Times reported that ‘[a] panel of independent experts has harshly reviewed the World Health Organization’s handling of the 2009 epidemic of H1N1 swine flu, though it found no evidence supporting the most outlandish accusation made against the agency: that it exaggerated the alarm to help vaccine companies get rich’. Donald G. McNeil Jr., ‘Response of WHO to Swine Flu is Criticized’, New York Times (10 March 2011); see also Jon Cohen, ‘Committee Sharply Critiques WHO’s Pandemic Response’, 11 March 2011, available at: http://news.scien cemag.org. WHO, IHR Report, 2011 (n 54), 11, 14, 17, 128, 130 and 133. On 10 August 2010, after the Emergency Committee’s Ninth Meeting, ‘[b]ased on the advice of the Emergency Committee, and her own assessment of the situation’, the Director-General declared an end to the pandemic, terminating the PHEIC. WHO, ‘Director-General Statement Following the Ninth Meeting of the Emergency Committee’, 10 August 2010, available at: www.who.int. The statement also noted that ‘[t]he work of the Emergency Committee now being ended, the names, affiliations and declared interests of the Committee members and advisor will be published on the WHO website as soon as possible’. WHO, IHR Report, 2011 (n 54), 16 and 132. 95 Ibid., 18 and 134.

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systematic and open set of procedures for disclosing, recognizing and managing conflicts of interest among expert advisers’.96 The Committee noted that although there were five Emergency Committee members and an advisor who declared potential conflicts, the conflicts were not ‘determined sufficiently important to merit the members’ exclusion’ and were not publicized until August 2010.97 The Review Committee ‘recognize[d]’ the WHO’s subsequent attention to conflicts of interest and improvement in that area,98 but called for clarification of the standards and ‘more transparent procedures’ for potential committee members’ conflicts of interest.99 For the future, the Review Committee recommended the appointment of a ‘designated ethics officer’.100 Even beyond the Committee’s recommendations, there is great potential for improvement of the IHR’s transparency mechanisms. Notably, the IHR provide that ‘[t]he Health Assembly shall periodically review the functioning of these Regulations’ but does not specify a recurring timeline beyond the requirement that the first report must occur ‘no later than five years after the [Regulations’] entry into force’.101 Should the IHR specify a time horizon for periodic reports, requiring them every five years? Or should reports only be issued after the WHO deals with a pandemic or similar health emergency? A reporting schedule is one of many possible amendments to the IHR. Nevertheless, future improvements aside, ultimately the Review Committee process worked by providing a transparent examination of the IHR’s operation. Furthermore, the process itself was an important triumph of transparency and alleviated the worst criticisms of the WHO.

5. Transparency and Evolution: Lessons Learned on Independent Reporting Requirements in International Health Law Instruments As the WHO increasingly inhabits its new role of international lawmaker, its use and understanding of transparency mechanisms has evolved and there have been institutional steps toward greater 96 99

100 101

97 98 Ibid., 16, 79 and 132. Ibid. Ibid. Ibid., 18 and 134. The Review Committee found that the WHO’s responses, including a 3 December 2009 briefing note and a 22 January 2010 response, were belated and that, in reference to the 2009 response, the ‘delay did not help dispel the allegations’, ibid., 118–119. Ibid., 18 and 135. WHO, International Health Regulations (2005) 2008 (n 1), art. 54.

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transparency. In the WHO’s first treaty, the FCTC, such mechanisms were limited. The WHO’s latest legal instrument, the Global Code, contains significantly deeper institutional transparency mechanisms both in the Code itself (negotiated by member States) and its draft guidelines (developed by the Secretariat). However, the draft guidelines were ultimately not promulgated by the Secretariat or, consequently, implemented by member States. A trend of increasing organizational transparency will bolster the WHO’s legitimacy as an international law-maker. In 2003, the World Health Assembly adopted the FCTC and signalled its entry into the realm of global health law-making. The FCTC contained a national reporting requirement, mandating that States submit reports on implementation to the Conference of the Parties within two years (after which the States parties would determine the ‘frequency and format’ of a continuing reporting requirement).102 The Convention also requires the WHO, as the Secretariat, to prepare reports on its own activities.103 The first Conference of the Parties established a coordination model for reporting on the Convention’s implementation.104 The WHO recently adopted the Global Code of Practice on the International Recruitment of Health Personnel (‘Global Code’), a nonbinding code addressing international health worker migration. The Global Code contains even more detailed provisions for review than the FCTC and the IHR. In a resolution accompanying the Global Code’s declaration, the World Health Assembly called for a ‘first review of the relevance and effectiveness of the WHO Global Code’ by the SixtyEighth World Health Assembly (five years later).105 The World Health Assembly also requested that the Director-General make revision proposals ‘based upon periodic reporting’.106 Within the Global Code, article 9 (‘monitoring and institutional arrangements’) mandates that the Director-General ‘keep under review the implementation of this Code, on the basis of periodic reports received from designated national authorities (. . .) and other competent sources, and periodically report to the World Health Assembly on the effectiveness of the Code in achieving its stated objectives and 102 104

105

FCTC, 2003 (n 34), art. 21. 103 Ibid., art. 24(3)(d). WHO, Conference of the Parties to the WHO Framework Convention on Tobacco Control, Designation of the Permanent Secretariat and Arrangements for its Functioning, A/FCTC/COP/1/5, 23 January 2006. WHO, Global Code, 2010 (n 36). 106 Ibid.

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suggestions for its improvement’.107 This data is to be submitted in conjunction with national reports every three years, ‘beginning with an initial data report within two years after the adoption of the Code’.108 These specific reporting requirements are accompanied by a general provision mandating periodic review by the World Health Assembly.109 In addition to the provisions in the Code itself, the draft guidelines prepared by the Secretariat in 2010 and 2011 to support implementation of the Global Code envisioned promoting transparency through section 1.6.2 (providing that ‘Regular National Reports are [to be] made publicly available through their posting on the WHO website’) and section 1.6.3 (‘[i]n accordance with the principle of transparency, the Reports from Other Stakeholders’ also will be publicly available through the website),110 thus permitting everyone to monitor the actions of States and non-State stakeholders. However, the draft guidelines were not ultimately adopted by the Secretariat and the National Reporting Instrument, issued by the Secretariat in February 2012, focuses on steps taken to implement the Code but does not provide for public posting of reports or include a mechanism for non-State actor reporting. It should be noted that, as a consequence of WHO reform, there were important changes in staff and organization at WHO between the time of the adoption of the Code and the draft Guidelines and the final iteration of the reporting instrument. The scope of transparency and democratic participation envisioned by the draft Guidelines was without precedent at WHO. The draft Guidelines – which called for reports to be posted publicly, accessible to anyone with an internet connection – would have created an unprecedented level of transparency for the WHO by allowing for public participation in the reporting process and keeping the public fully informed of the Code’s

107 108

109 110

Ibid., art. 9.2. Ibid., art. 7.2(c). The Secretariat submitted its report in December 2012 and an updated report in April 2013. See WHO Secretariat, ‘The health workforce: advances in responding to shortages and migration, and in preparing for emergency needs’, 14 December 2012, EB132/33; WHO Secretariat, ‘The health workforce: advances in responding to shortages and migration, and in preparing for emergency needs’, 12 April 2013, A66/25. Ibid., art. 9.5. WHO, ‘WHO Code of Practice on the International Recruitment of Health Personnel: Draft Guidelines on Monitoring the Implementation of the WHO Global Code’, March 2011, available at: www.who.int, 6.

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implementation. They were drawn from the experience of human rights reporting and legal instruments developed by the Food and Agricultural Organization and were specifically included in the draft Guidelines to promote democratic participation and transparency in the reporting process. The final National Reporting Instrument is an unfortunate step backwards from the broadly envisioned democratic and transparent process conceived of in the preparation of the draft Guidelines. While the National Reporting Instrument focuses on steps that member States have taken to implement the Code the national reports are not published or otherwise available from the WHO. In addition, the first Secretariat report to the World Health Assembly in April 2013111 (as required by the Global Code) did not detail country-specific implementation of the instrument. Hence, in stark contrast to the reporting process envisioned by the draft Guidelines, the WHO reporting process currently provides no public information or opportunity for public scrutiny of national efforts to implement the Code. Although the FCTC, the IHR and the Global Code represent three alternative methods of global health law-making available to the WHO, their trend toward transparency and reporting mechanisms represents an overall trend toward greater transparency. While this trajectory is not entirely smooth and there are steps backwards, this overall trend toward greater transparency is an important shift that should continue in the WHO’s future law-making endeavours.

6. Future Transparency at the WHO 6.1

The WHO and the Expert Regulations

This section will discuss further recommendations for how the WHO can augment its transparency. The work of the WHO benefits from the approximately 781 experts who serve on 47 expert advisory panels across the organization.112 In addition, the WHO has expert committees, ‘group[s] of expert advisory panel members convened by the DirectorGeneral for the purpose of reviewing and making technical recommendations on a subject of interest to the Organization’.113 As previously mentioned, the IHR (2005) mandate the creation of an ‘IHR Expert 111

112 113

WHO Secretariat, ‘The health workforce: advances in responding to shortages and migration, and in preparing for emergency needs’, 12 April 2013, A66/25. WHO, ‘Expert Advisory Panels and Committees’, 2010, available at: www.who.int. Ibid.

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Roster’, from which both the Emergency and Review Committees shall be drawn. The criticisms of the Emergency Committee brought the WHO’s policies on experts into the spotlight. In order to meet these criticisms while fulfilling its organizational objectives, the WHO must ensure that its regulations with respect to experts adequately address conflicts of interest and other transparency dilemmas. Currently, the Regulations for Expert Advisory Panels and Committees address the ‘International Status of Members’ in article 4.6, which specifies that experts serve in their individual capacity and mandates that they ‘shall disclose all circumstances that could give rise to a potential conflict of interest as a result of their membership of an expert committee, in accordance with the mechanisms established by the Director-General for that purpose’.114 Additional provisions that ensure the independent and transparent evaluation of these conflicts of interest would improve this regime.

6.2

The WHO and Partnerships

In recent years, public–private partnerships have become a critical part of the global health landscape, and collaboration with the private sector an ‘increasingly important aspect of WHO’s efforts’ in engaging actors across the global health spectrum.115 However, as former WHO General Counsel Gian Luca Burci has noted, the WHO’s Constitution does not address the role of the private sector, whether in the form of commercial enterprises or private non-profit foundations, and there has been relatively little guidance on this issue until recently.116 How can the WHO construct transparency mechanisms for these partnership arrangements? Although such partnerships offer great promise, the WHO must be vigilant in ensuring that public–private partnerships or hosting arrangements contain transparency-optimizing mechanisms.117 The 114

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WHO, World Health Assembly, Regulations for Expert Advisory Panels and Committees, text adopted by the Thirty-fifth World Health Assembly, WHA35.10, art. 4.6. Burci/Vignes, World Health Organization 2004 (n 45), 94. Ibid., 94 and 100–101 (emphasizing that public–private partnerships are viewed as ‘an important tool to mobilize private industry for priority health goals in innovative ways, which would adapt models of corporate governance and rely on the comparative advantages of partners’). Kent Buse and Gill Walt note: ‘accountability within public-private partnerships may be less straightforward, partly because of the distance between the global partners and the beneficiaries and the length of time for any impact to be felt’. Kent Buse/Gill Walt,

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danger of a democratic deficit is especially strong when the WHO involves actors outside the institution, and ensuring transparency for these endeavours will result in greater accountability in decisionmaking. The WHO, as a public health regulatory body and now lawmaking institution, must ensure that public–private partnerships retain transparency mechanisms that keep it accountable to the constituencies it serves. The World Health Assembly recently published a policy on global health partnerships and hosting arrangements, following a report highlighting the WHO’s ‘hosting arrangements’. According to the policy, for these partnerships the ‘WHO will ensure that its hosting (. . .) and provision of its secretariat is congruent with WHO’s accountability framework and operational platform (. . .) and protects WHO’s integrity and reputation’.118 Currently, one of the ‘[c]riteria for WHO’s engagement in a partnership’ is the inclusion of ‘independent external evaluation and/or self-monitoring mechanisms’.119 The partnership guidelines also call for an ‘evaluation and sunset clause’, which will invoke a ‘monitoring and evaluation framework’ for the WHO to consult when determining whether to continue the partnership.120 Based on the lessons of the 2009 pandemic, the WHO should focus on independent external evaluation instead of relying on self-monitoring mechanisms.

7. Conclusion It has become well established that organizations can evolve and learn. The last fifteen years reflect the commencement of a learning process for the WHO as it enters the realm of international law-making.121 Due in part to the globalization of public health, the WHO has undergone a transition from a technical medical organization to a more politically focused organization. As part of this evolution, the WHO is increasingly looked to as a platform for political action for high-priority global health

118 119 121

‘The World Health Organization and Global Public-Private Health Partnerships: In Search of “Good” Global Health Governance’, in Michael R. Reich (ed.), Public-Private Partnerships for Public Health (Cambridge Mass.: Harvard Center for Population and Development Studies, 2002), 169–195, 189. WHO, Sixty-third World Health Assembly, Partnerships, WHA63.10, 21 May 2010. Ibid., 4. 120 Ibid., 7 (internal quotation marks omitted). Allyn L. Taylor, ‘Governing the Globalization of Public Health’, Journal of Law, Medicine and Ethics 32 (2004), 500–508, 505.

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issues, such as the 2011 virus-sharing agreement. Although its reputation may have suffered following the H1N1 pandemic, the success of the IHR and its built-in transparency mechanisms demonstrate that the WHO is in a process of evolution and learning, deepening its capacity as a law-maker. This development is a welcome one, although the fact that the Global Code’s draft Guidelines were not ultimately adopted indicates that this process will not be entirely smooth. If the WHO is to retain its reputation and bolster its legitimacy as an international lawmaker, its drive toward international law-making must continue to be accompanied by an equally strong commitment to transparency. This commitment must also stretch beyond law-making to encompass the WHO’s relations with experts and public–private partnerships, in order to ensure accountability to the communities it serves. Improvement of mechanisms ensuring transparency at an institutional level will not only prepare the WHO for the next global pandemic, but also for the increasing challenges of global health governance that the Organization will continue to face in the twenty-first century.

PART V International Humanitarian Law

12 Behind the Flag of Dunant: Secrecy and the Compliance Mission of the International Committee of the Red Cross steven r. ratner*

1. Introduction In the world where most prominent NGOs see their role in the international legal process as public advocacy, often through naming and shaming, one leading NGO stands apart – the International Committee of the Red Cross (ICRC), the 152-year-old Swiss institution founded by Henri Dunant to aid the victims of armed conflict worldwide. With its staff of over 12,000 in 80 countries, the ICRC has a reach greater than that of the best-funded NGOs. Its self-proclaimed mission is to serve as the ‘promoter and guardian of international humanitarian law’ (IHL).1 Much of its work consists of hundreds of confidential visits and authorship of numerous secret reports to monitor compliance by armies, security forces and non-State armed groups with IHL. In doing so, it is deliberately opaque: it rarely identifies violators publicly; it leaves its legal position on many key issues ambiguous, sometimes even from the target of its discussions; and at times it avoids legal discourse entirely when persuading parties to follow legal rules. This aversion to transparency is not only at odds with the assumptions of the naming and shaming strategy regarding the most effective means to induce compliance. It also makes it almost impossible for outsiders to * This chapter builds on a year’s worth of field research in 2008–2009 as an in-house consultant at the ICRC headquarters in Geneva. For a complete list of sources and more details, see Steven R. Ratner, ‘Law Promotion beyond Law Talk: The Red Cross, Persuasion, and the Laws of War’, European Journal of International Law 22 (2011), 459–506. 1 International Committee of the Red Cross, ‘What is the ICRC’s Role in Ensuring Respect for Humanitarian Law?’, 1 January 2004, available at: http://icrc.org.

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know the ICRC’s legal characterization of specific cases. As a result, its approach to protection of victims, even if successful in individual cases, seems to undermine its self-professed role as the guardian of – the authoritative interpreter of and voice for – international humanitarian law.2 This tension between the role of the ICRC, and the ICRC’s approach to it, should interest scholars and those concerned with the proper role for transparency in encouraging compliance with law generally. It also calls into question the assumption underlying other chapters in this volume that transparency is necessarily beneficial for the promotion of international law.

2.

The ICRC’s Self-described Mandates

The ICRC describes itself as ‘an impartial, neutral and independent organization whose exclusively humanitarian mission is to protect the lives and dignity of victims of armed conflict and other situations of violence and to provide them with assistance’.3 Protection and assistance lie at the core of the ICRC’s operations. Protection work typically involves visiting people deprived of their liberty – in international and civil conflicts as well as for security and criminal detention – and recommending improvements to their treatment; intervening during hostilities on behalf of civilian victims; and restoring family links between people separated by war. Assistance entails the provision of humanitarian aid to various categories of victims, usually with other humanitarian actors. The scope of and mandate for protection and assistance have grown significantly since its founding as a Swiss private association in 1863.4 Under the 1949 Geneva Conventions and 1977 Additional Protocol I, States are obligated to allow the ICRC to visit prisoners of war and civilian detainees in international armed conflicts; the Conventions and Protocol I also permit the ICRC to carry out any other humanitarian

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For the ICRC’s formal position, see ICRC, ‘The International Committee of the Red Cross (ICRC): Its Missions and Work’, International Review of the Red Cross 91 (2009), 399–413, 401. Ibid., 400. See generally David Forsythe, The Humanitarians: The International Committee of the Red Cross (Cambridge University Press, 2005), 5–29; François Buignon, The International Committee of the Red Cross and the Protection of War Victims (Geneva: ICRC, 2003), 11–28.

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initiatives with the parties’ consent.5 For non-international armed conflicts, common article 3 allows the ICRC to offer its services to the parties, which it frequently does. Beyond these authorities, the ICRC frequently assists people in non-war situations, where human rights law is the governing legal framework. The ICRC carries out its function of promoting international law in both public and private modes.

2.1

The Public Face

First, the ICRC has authored, or participated closely in the preparation of, interpretive documents on IHL, each with different legal valences. Most of these documents are primarily addressed to experts in IHL and human rights law.6 Second, the ICRC targets governments to ratify various IHL treaties and to enact implementing legislation. The ICRC thus offers so-called advisory services, overseen by its own lawyers, entailing hands-on consultation with and assistance to foreign ministries, legislatures, and other domestic decision-makers. Third, the ICRC organizes education and training of participants in armed conflicts. Here, the focus is on translating the norms of IHL into doctrine, operational policies, and rules of engagement. For at least a decade it has attempted to teach non-State armed groups about IHL, an initiative with special challenges because the groups typically operate clandestinely, often have unusual hierarchies, and may prove unfamiliar with or suspicious about IHL.7 Last is its general communication strategy to raise overall awareness of IHL, including curricula for IHL at various levels of education and the ICRC website.8

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Geneva Convention Relative to the Protection of Civilian Persons in Times of War, 12 August 1949, 75 UNTS 287, art. 143; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3, art. 81. See e.g. Jelena Pejic, ‘Procedural Principles and Safeguards for Internment/ Administrative Detention in Armed Conflict and Other Situations of Violence’, International Review of the Red Cross 87 (2005), 375–391; Nils Melzer (ICRC), Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (Geneva: ICRC, 2009). ICRC, Armed Groups and the ICRC: A Challenging But Necessary Dialogue, 21 August 2009 (on file with author). See e.g. ICRC, ‘The Basics of International Humanitarian Law’, 2010, available at: www. icrc.org.

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2.2

The Private Face

It is the hidden side of the ICRC’s mission that occupies the bulk of its resources and proves most important for our understanding of the role of transparency and of its absence. This secret side comprises two modes of action. The first generally private promotional work is the ICRC’s engagement in what it calls humanitarian diplomacy in multilateral forums. This process involves lobbying international institutions whose work includes issues of relevance to the ICRC. Some of the diplomacy work is targeted at country situations, but much of the work is non-countryspecific.9 The audience extends beyond the specialists in IHL to diplomats in States and international organizations. The process aims both to impart expertise where it is lacking and to convince decision-makers to take into account the ICRC’s interpretation of the law or its operational needs. The ICRC has thus followed closely UN debates about protection of civilians in armed conflict and offered views reflected in UN resolutions and documents.10 It monitors debates in New York concerning the Responsibility to Protect (R2P) out of concern that the developing world’s suspicions about R2P’s notion of protection – which includes UN action to assist people abused by their governments11 – do not spill over into hostility to the ICRC’s humanitarian protection. And the ICRC joins in the preparation of treaties or publicly encourages their ratification, as with the Ottawa Mines Convention12 and the Oslo Cluster Munitions Convention.13 The second and most significant form of action involves communication between the ICRC and those involved in armed conflicts (or other situations in which the ICRC plays a role, such as security detentions) about their past or ongoing conduct. This process proceeds in a number of steps: gathering of information, reports to authorities with control over the relevant events, and then follow-up utilizing numerous 9

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For the work of the Multilateral Diplomacy and Humanitarian Coordination unit, see ICRC, Annual Report 2010 (Geneva: ICRC, 2011), 76. See e.g. UNSC, Resolution 1882, S/RES/1882, 4 August 2009; UNGA, Resolution 67/93: Status of the Protocols Additional to the Geneva Conventions of 1949 and Relating to the Protection of Victims of Armed Conflicts, A/RES/67/93, 14 January 2013. See UNGA, Resolution 60/1: 2005 World Summit Outcome, A/RES/60/1, 24 October 2005, paras. 138–139. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of AntiPersonnel Mines and on their Destruction, 18 September 1997, 2056 UNTS 211. Convention on Cluster Munitions, 3 December 2008, 48 ILM 357.

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strategies. The ICRC’s strategy for addressing violations is spelled out in its Doctrine 15, a public document entitled ‘Action by the ICRC in the Event of Violations of International Humanitarian Law or of Other Fundamental Rules Protecting Persons in Situations of Violence’, originally drafted in 1981 in part to respond to criticism of the ICRC’s silence during the Holocaust.14 Doctrine and practice point to essentially four steps in the ICRC’s issuance of country-specific communications:

Phase 1: Reminder of Obligations When an international armed conflict breaks out, the ICRC deposits a confidential aide-memoire with the warring parties (including non-State actors), reminding them of their core obligations under IHL. When internal hostilities reach a certain threshold, such memoranda will be sent to the government and insurgent forces as well. Phase 2: Bilateral Confidential Memoranda and Discussions Once a conflict is under way, or in non-conflict situations where the ICRC is invited by the government to operate, the ICRC gathers information on the situation of victims, primarily through personal contacts between delegation members and victims through visits to prisons, war zones, refugee camps, hospitals and other sites. The ICRC also gets evidence from other organizations in place. It eventually submits a detailed report to the States or armed groups, either during the conflict or after. The ICRC hopes that its confidential reports will lead to a dialogue with States and armed groups to improve the plight of victims. The prospects for such discussions vary significantly across targets. Some are willing to sit down with ICRC officials to consider solutions to violations; others are not interested in follow-up. Phase 3: Mobilization of Other Actors If the ICRC believes that confidential dialogue is not improving the situation of victims, it can cultivate other actors who may have influence on the parties. These so-called mobilization efforts will focus on governments friendly with the target State or armed group, but could also include international organizations or NGOs. Mobilization is also 14

ICRC, ‘Action by the International Committee of the Red Cross in the Event of Violations of International Humanitarian Law or of Other Fundamental Rules Protecting Persons in Situations of Violence’, International Review of the Red Cross 87 (2005), 393–400 (Doctrine 15).

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undertaken confidentially, often in such a way that it cannot be traced back to the ICRC.

Phase 4: Public Criticism In a small number of situations, the ICRC will abandon confidentiality and issue a public statement of censure. Doctrine 15 identifies two forms of such criticism – a public expression of concern over the quality of its dialogue with the target State or group; and a ‘public condemnation of specific violations of international humanitarian law’.15 As discussed below, the ICRC’s actual practice is more nuanced than the doctrine. 3.

The Three Layers of the ICRC’s Opacity

Of the various ways to promote compliance with IHL, confidential communications are at the core of the ICRC’s work. Delegates are carefully trained in the methodology for such activity, and indeed it is at the core of the institution’s identity. More important for our purposes, here the ICRC demonstrates that a strategy of compliance transcends the public, law-laden advocacy associated with its public face. The ICRC learns of the plight of victims of IHL violations and engages in confidential conversations to improve their situation. In this dialogue, the tension between the institution’s missions of protecting individuals and serving as the guardian of IHL for all becomes most acute. Here, the ICRC must make a series of decisions regarding the role of international legal argumentation: What sources of law should be mentioned? Should violations be identified as such? Which interlocutors on the other side are in the best position to respond to various legal arguments? Should the confidential overtures extend beyond the target State or non-State actor? Should the ICRC ever make its legal views known publicly? The ICRC’s decisions regarding transparency, and the content of the various communications following those decisions, take place along three distinct dimensions.

3.1

Confidentiality: Managing Knowledge of the ICRC’s Views by the Public

ICRC doctrine and practice treat confidentiality as the baseline for communications with governments and armed groups. Those outside 15

Ibid., paras. 3.2 and 3.3.

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the ICRC’s channel of communications generally will not know (1) the facts of the particular conduct of the State or armed group, including the type of abuses, their location, their perpetrators, or their victims; or (2) the ICRC’s opinion as to whether that conduct violates IHL or other legal norms. The ICRC has sought to extend this confidentiality outside specific interventions during conflicts. It has argued, successfully, before the ICTY that its records should be confidential and that its delegates are absolutely immune from requirements to testify.16 Article 73 of the Rome Statute provides a similar protection in the ICC.17 The ICRC takes great pride in this accomplishment.18 This secrecy undercuts the ICRC’s guardian function insofar as a particularly authoritative interpreter of a body of international law is refraining from telling the world its view of the law in specific cases. The situation is analogous to a detailed elaboration of the law by a court without applying its interpretation to the facts of a case. For States, NGOs, and domestic constituencies seeking guidance on whether a State is violating IHL, the ICRC, whose views would be most helpful, is normally a black box. Such a stance seems particularly corrosive of respect for the law insofar as much of IHL contains open-textured provisions, e.g. the principle of proportionality, for which a real case law would be extremely helpful. In a partial institutional response to this tension, ICRC policy makes confidentiality less than absolute. Rather, confidentiality, like the law itself, is a tool calibrated to match operational needs. While confidentiality is often crucial for access, the parties may be more motivated to grant access due to trust in the even-handedness and experience of the ICRC. Today, the ICRC has a communication infrastructure to inform the world – up to a point – of its activities. Moreover, the ICRC may, with the consent of the parties, share information. With respect to conditions of confinement in prisons, States frequently want potential donors to know about their limitations and provide aid in remedying the situation. Even without a State’s permission to go public, the ICRC’s confidentiality has its limits in sensitive protection matters. First, as mentioned 16

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ICTY, Prosecutor v. Simić et al.: Decision on the Prosecution Motion under Rule 73 for a Ruling Concerning the Testimony of a Witness, Decision of 27 July 1999, Case No. IT95–9. Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90, art. 73. Gabor Rona, ‘The ICRC Privilege Not to Testify: Confidentiality in Action’, International Review of the Red Cross 84 (2002), 207–219.

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earlier, ICRC doctrine allows for so-called mobilization and denunciation. Second, beyond formal denunciation, the organization has issued statements of concern during a conflict that identify violations but conspicuously avoid identifying the violator.19 It can also make statements that effectively blame one side and urge better behaviour without formally condemning it.20 After ICRC delegates found the wounded members of a Palestinian family during the 2008–2009 Gaza War denied medical aid due to Israel’s blocking of ambulances, it issued a de facto denunciation.21 The result is thus a spectrum of approaches to confidentiality. In each episode, the ICRC’s determination regarding dissemination of its views is driven by an internal judgement as to what will be most effective for the victims.22 Generally, it tilts in favour of fairly strict confidentiality, out of a belief that it is necessary for access; public criticism (or even the threat to do so) is viewed as not aiding the victims but risking withdrawal of cooperation by the State or armed group, or, worse, ouster of or harm to ICRC staff. Internally, delegates are acculturated through training and field experience to accept the starting point of confidentiality; indeed, most presumably endorse the ICRC’s modus operandi (and its alternative vision compared to that of a human rights NGO) before even signing up. Decisions to move to mobilization or public denunciation generally require higher-level approval, either by the head of delegation or officials in Geneva.

3.2

Ambiguity: Managing Knowledge of the ICRC’s Legal Views

Even if the ICRC keeps most of its legal interpretations secret from outsiders, if it shares them with the parties, it is at least fulfilling part of the notion of guardian of IHL by telling them what they must or must not do. And in most situations, the ICRC does indeed share its legal views with the parties. Yet the ICRC does not always do so; it sometimes 19

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See e.g. ICRC, ‘Sri Lanka: Vanni Hospital Shelled’, 1 February 2009, available at: www. icrc.org. ICRC, ‘US Detention Related to the Fight against Terrorism – The Role of the ICRC’, 4 March 2009, available at: www.icrc.org. ICRC, ‘Gaza: ICRC Demands Urgent Access to Wounded as Israeli Army Fails to Assist Wounded Palestinians’, 8 January 2009, available at: www.icrc.org. See also Toni Pfanner, ‘Various Mechanisms and Approaches for Implementing International Humanitarian Law and Protecting and Assisting War Victims’, International Review of the Red Cross 91 (2009), 279–328.

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deliberately keeps its position on legal matters ambiguous. Thus, for example, it will sometimes refuse to state to the parties to a conflict whether it has determined that the level of violence has risen to the level to trigger common article 3 or Protocol II. It has also refrained from informing them whether it regards one State’s control of foreign territory as an occupation that triggers the special protections of Convention IV. These decisions seem more at odds with the role of guardian of IHL than does confidentiality, for at least the latter can be justified as avoiding public embarrassment, which could improve overall behaviour. In the case of ambiguity, if the parties are not even told the ICRC’s interpretation, the prospects for convincing them – let alone influencing others who might care about the ICRC’s views – to understand and follow the relevant norms seem all the more difficult. Yet, these decisions also stem from a humanitarian motivation. With respect to the two issues above, the ICRC worries that States may react adversely enough to the ICRC’s opinions that they will withhold cooperation from it. In the case of the threshold for armed conflict, the government will often want to maintain its official line that an opposition group is merely a criminal band, or that fighting is only at the level of skirmishes. In the case of occupation, a State will generally wish to deny strongly that it is occupying another State. Thus, rather than telling the State that it is legally an occupier, the ICRC presents it with a generic set of expectations for the treatment of civilians.

3.3

Avoidance: Managing the Need for Legal Argumentation

A third layer of secrecy is not so much about the density of the legal argumentation, but whether to invoke international law at all. For despite its stated goal of promoting IHL and the historic centrality of IHL to the institution, the ICRC often avoids IHL arguments entirely. The ICRC’s alternatives to law talk include principally: (1) humanitarian arguments, i.e. that changed behaviour will reduce the suffering of innocent victims of the conflict; (2) political arguments, i.e. that changed behaviour will improve the target’s domestic or international reputation; (3) economic arguments, i.e. that changed behaviour will lead to additional sources of foreign or domestic revenue; (4) pragmatic arguments, i.e. that changed behaviour will improve the efficiency, discipline or internal functioning of the target’s armed or security forces; (5) moral arguments, i.e. that changed behaviour is the morally right (either permissible or obligatory) way to respond in the sense of the way a

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decent military or security force should act; and (6) customary arguments, i.e. that changed behaviour is demanded by the customs and mores of the society. Recourse to non-legal argumentation may take two forms – one where those six arguments are offered as reasons to comply with an IHL norm, and one where they simply replace any discussion of the norm. The ICRC does both, but the latter challenges its role as guardian of the law. It is one thing to give a party material or other reasons for complying with the law – this represents the bread and butter of many law compliance strategies, on the assumption that much law is not internalized as an obligation. It is quite another to give a party reasons to act a certain way without regard to whether the party would then be following a rule. The process of choosing between transparent legal arguments and these six alternatives, as well as choosing among the six, and deciding which of the two permutations thereof to use, is one of the most challenging tasks within the ICRC’s communication function. In 2005, the ICRC approved a policy document with a toolbox of approaches, a study of best practices, and operational guidelines for delegations.23 It reiterated the importance of integrating the law into training, military codes of conduct, unilateral declarations and cease-fire agreements, but recognized what delegations had long practiced – the need to offer what it called ‘strategic argumentation’.24 The ICRC offered ideas for persuading parties how compliance with the law was in their own interests, as it could improve military discipline, encourage reciprocal conduct by the enemy, promote a side’s reputation, appeal to a side’s moral values, and advance the prospects for long-term peace. Since then, the ICRC has completed detailed guidelines (still, alas, confidential) for dialogue with armies and armed groups relying on these contextual factors. That project, led by several assigned staff with extensive field experience, includes evaluation of experiences of delegates working in civil wars. However, the incorporation of these ideas into decision-making in Geneva and the delegations remains a work in progress, with different perspectives among staff on the priorities to be given to legal vs. other sorts of arguments. 23

24

For a public summary of the still-confidential document, see Michelle Mack (ICRC), Increasing Respect for International Humanitarian Law in Non-international Armed Conflicts (Geneva: ICRC, 2008). Ibid., 30. See also Olivier Bangerter, ‘Reasons Why Armed Groups Choose to Respect International Humanitarian Law or Not’, International Review of the Red Cross 93 (2011), 353–384.

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The ICRC has thus recognized the need at times to push legal argumentation to the shadows. Officials talk and delegates learn about a need to appreciate the target audience and to ask whether invocation of law will add to their powers of persuasion. In particular, alternative argumentation is critical when interlocutors (1) are ignorant of, or might be confused by, the law’s contents; or (2) see the law as a creation or tool of their enemy (as is common among rebel groups, who do not become parties to IHL treaties). As a result, one witnesses a spectrum of dialogues with regard to their legal component. At one end might be highly legalized exchanges with the US or Israeli military, staffed with skilled lawyers; at the other might be conversations with the Lord’s Resistance Army, a Sudanese rebel group, or elements of the Taliban. In a sense, this pattern is not surprising. Most international institutions, through their leaders and bureaucrats, routinely make the best arguments they can to advance their agenda. Those arguments sometimes include a legal component, but often that legal case is only permissive and consists of saying that international law does not preclude the action that the organization is about to undertake.25 We would be surprised if most of the statements of the UN Secretary-General, or the Director-General of the World Health Organization, were based on arguments that the law required action by the organization or its members. At the same time, for institutions with a mandate to determine State compliance with rules – e.g. the European Court of Human Rights – we would be equally surprised if their conclusions included anything other than legal arguments. We might regard it as ultra vires if they ruled against a party based on legal arguments and then, in addition, proffered reasons why it should comply; and it would be worse if they told the losing party that it must correct a course of action simply because it would benefit the party politically, or because morality demanded it. The uniqueness of the ICRC is that it has an explicit mandate to promote compliance with a body of law,26 and yet frequently chooses to hide its legal arguments and instead make precisely those sorts of non-legal arguments to the parties.

25

26

See Rosalyn Higgins, ‘The Place of International Law in the Settlement of Disputes by the Security Council’, American Journal of International Law 64 (1970), 1–18, 6. See ICRC, ‘Statutes of the International Committee of the Red Cross’, 8 May 2003, available at: www.icrc.org, art. 5(2)(c).

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4. Explaining the ICRC’s Secrecy The ICRC bases its communication strategy, including decisions on the various dimensions of secrecy, on its evaluation of four factors: (1) the nature of the dispute; (2) the nature of the parties; (3) the nature of the persuasive setting; and (4) the nature (as well as its sense) of its own identity.27 The first three of these inputs are part of a rationalist calculation of the likelihood of success of different sorts of interventions. The fourth factor, however, is best seen as an identity-based input.

4.1 Understanding the Inputs First, the nature of the dispute is an armed conflict or a situation the government regards as a security threat. Here, prospects for successful persuasion already face a significant barrier, one long recognized by international organizations seeking to resolve disputes before they become violent. For the ICRC, the threshold of an exceptional situation has – legally (in the case of actual armed conflict) and on the ground – already been crossed. The operation of persuasion where the parties have abandoned rational discourse to address their differences creates a hurdle for actors seeking compliance with law.28 Indeed, the very secrecy that surrounds armed conflict, as described by Orna Ben-Naftali and Roy Peled, makes the warring parties suspicious of both internal and external scrutiny of their conduct.29 This dynamic translates, for the ICRC at least, into a sense of realism about the effectiveness of public, law-laden argumentation. Beyond the dispute’s setting within an armed conflict, the ICRC faces a set of micro-disputes with its targets, each with its own causes and dynamics. Thus, a war may raise disputes over the treatment of prisoners, targeting policies, and treatment of civilians. The absence of armed conflict or a perceived internal security threat will necessitate an alternative communications strategy, as seen in the ICRC’s public, preventive work during peacetime. Second, the ICRC interposes itself with a variety of armed actors, State and non-State. They may be well organized or poorly disciplined; and they may have a variety of relationships both with the population under 27 28

29

See Ratner, ‘Law Promotion’ 2011 (n *). See Oren Gross/Fionnula Ni Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge University Press, 2006), 106–109. Orna Ben-Naftali/Roy Peled, ‘How Much Secrecy Does Warfare Need?’, chapter 13 in this volume.

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their control or with outside actors (with whom their reputation may be quite important). Actors may be more or less familiar with international norms. Beyond their substantive knowledge of the law, each actor may have its own perception of authority – in the sense of those entities and processes it views as legitimate makers of rules – that will affect its receptivity to legal as compared to other arguments. Those perceptions may include views on the ICRC itself. Thus, while some non-State armed groups still see the ICRC as a Western entity, others welcome the chance to speak to an international body not preoccupied with getting them to surrender. Beyond these predispositional factors, targets have varying perspectives on each micro-dispute, perhaps aware of some code of honour regarding civilians but unwilling to recognize norms regarding prisoners. Lastly, each entity, State or non-State, will be comprised of individuals within a hierarchy susceptible to diverse forms of argumentation.30 Generals need to be approached differently from lawyers. Broadly speaking, the ICRC must decide whether its interlocutors are part of the same interpretive community such that overt legal argumentation is possible.31 Third, the nature of the persuasive setting can vary significantly within conflicts. Sometimes the ICRC will be in direct contact with the combatants; at other times it will be speaking with their representatives, or allies, far away from the fighting. At times it will work in highly institutionalized venues, e.g. in influencing the content of Security Council or General Assembly resolutions, but more typically it engages in one-onone meetings with the parties without much structure. Fourth, regarding the traits of the persuader, the ICRC has defined its identity in terms of its neutrality and impartiality, whether by virtue of its connection with Switzerland or the internationalization of its staff. The organization perpetuates this identity through the requirement under its organic instrument that the sixteen members of the Committee (formally, that is what the ICRC is) all be Swiss nationals32 and the practice of placing Swiss nationals as the Director-General and heads of all the departments – creating a sort of chocolate ceiling for 30

31

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See Annyssa Bellal/Stuart Casey-Maslen, ‘Ownership of Norms by Non-State Actors: Policies and Programs: A Review of Practice’, Geneva Academy of International Humanitarian Law and Human Rights (February 2010), 26–29 (unpublished paper). See Ian Johnstone, ‘Legislation and Adjudication in the UN Security Council: Bringing Down the Deliberative Deficit’, American Journal of International Law 102 (2008), 275–308, 281. See ICRC, ‘Statutes of the ICRC’ 2003 (n 26), arts. 2 and 7.

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everyone else. At the same time, the ICRC does possess a special competence with respect to the substance of IHL, diplomatic skills, and the modalities of protection. It has publicly identified itself as the guardian of IHL. It is also quite conscious about differentiating itself from other NGOs. Unlike most of them, the ICRC needs to preserve an operational presence in zones of conflict, and thus it must not sour its relationships with the parties. This self-image is constantly at play in decisions regarding opacity. Equally important, the ICRC’s communication strategy not only results from its identity, but helps determine it.33 After the ICRC’s silence during the Holocaust, the institution engaged in internal deliberation (both ethical and political) that effectively altered its identity by opening the door to public denunciations of serious IHL violations.34 At the same time, were the ICRC to choose a radically new set of tactics, e.g. through frequent public condemnations, or consideration of ius ad bellum in its assessments, it would, in essence, no longer be the ICRC.

4.2

Relating Inputs to the Dimensions of Opacity

These four inputs result in decisions by the ICRC about its communications regarding non-compliance, and, in particular, about their degree of confidentiality, ambiguity and avoidance. First, with regard to confidentiality, the ICRC’s choice to keep its opinions out of the public realm reflects its assessment that States and non-State combatants are especially hostile to public criticism of their policies during armed conflict or domestic emergency. It also reflects the ICRC’s self-image as defined by discretion – a particularly Swiss attribute that has kept its banks a safe haven for despots and victims alike.35 Part of that identity includes a differentiation from other NGOs and the need to act independently of them. Yet the ICRC also recognizes that the public work of international organizations and other NGOs is important and indeed creates space and legitimacy for an alternative strategy. The ICRC’s step from strict confidentiality to mobilization of other actors reflects a choice that the parties will respond to the influence of those actors. To the extent that the ICRC abandons secrecy completely, it 33

34 35

See Michael Barnett, ‘Evolution Without Progress? Humanitarianism in a World of Hurt’, International Organization 63 (2009), 621–663. See ICRC, ‘Doctrine 15’ 2005 (n 14). See Forsythe, The Humanitarians 2005 (n 4), 237–241.

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seems to believe that a party is capable of acting positively in reaction to public criticism; its public statements regarding Guantanamo might be one example. It might also think that the target will not improve, but that aspects of its own identity – such as its guardian function – demand a public statement.36 When the ICRC engages in a wholly public strategy, as with its interpretive guidance, it does so because the tensions of an ongoing war are missing, its audience extends beyond States at war, and such an educative role enhances its self-image as the font of wisdom of IHL. Second, in deciding how ambiguous to be, the institution evaluates the inputs to determine the proper density of legal argumentation. It can gloss over certain legal issues in the course of invoking the law. That choice takes hold when it concludes that the party will react negatively to even private characterizations of the legal situation. In the case of occupation, that threat arises not merely from the additional obligations of the law of occupation, but from the party’s reaction to the label of occupier. The ICRC also knows that some States and armed groups respond better than others to fairly sophisticated legal arguments. And the institution’s self-image as a problem-solver rather than solely a promoter of IHL allows it to pivot from explaining the full legal situation to emphasizing only certain aspects of it, or to educating about avoiding future violations rather than pointing the finger at existing violations. When the ICRC opts for detailed elaboration of the law, e.g. publicly in the case of its guidance on direct participation in hostilities or privately in reminding Israel of its duties as occupier, it may be speaking to an audience not in the heat of armed conflict, or the parties may welcome such discussion, or it may want to demonstrate its own expertise. Third, with regard to avoidance¸ the ICRC will examine the features of the conflict(s) and of the parties and decide whether law talk will advance the goal of law compliance. This determination stems from the unique features of the conflict – who is fighting whom, and over what – as well as of the interlocutor in terms of personal background, placement within the power structure, and other factors. Although the ICRC professes agnosticism over the cause of armed conflict, insisting on the separation

36

See e.g. ICRC, ‘Case No. 142, ICRC, Iran/Iraq Memorandum’, reprinted in Marco Sassoli/Antoine Bouvier (eds.), How Does Law Protect in War: Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, vol. 2 (Geneva: ICRC, 2nd edn, 2006), 1529–1540.

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of ius ad bellum from ius in bello,37 its awareness of the origins of the conflict may lead to a preference for non-legal arguments. As for the ICRC’s identity, non-legal argumentation is the ultimate fallback of an organization that sees itself as fundamentally pragmatic about its humanitarianism. Although this basic mapping provides a sense of the influence of the various inputs on the modalities of argumentation, the relationships between each of the inputs and outputs are quite complex. The ICRC has sensibly crafted a framework of relevant considerations, rather than any kind of algorithm for effective action. We might consider two stylized situations that would confront the ICRC (that is, holding the variable of the persuading entity’s traits constant). In the first, a highly trained, disciplined military familiar with the ICRC is in the midst of a serious but not existential conflict, with sporadic violations of IHL; it is both sophisticated and disinclined to reject viscerally all claims of law violation (e.g. some version of the United States in Iraq). Here, the ICRC is likely to deploy a private, detailed and direct discourse. In the second, a rebel group, somewhat undisciplined and fighting for its existence while committing its own abuses, is legally ignorant and suspicious of IHL and the ICRC (e.g. some version of the Taliban in Afghanistan). In this case, the ICRC is likely to deploy a private, relatively simple and indirect or furtive approach.

5. Are Opaque Communications Effective? The effectiveness of the ICRC’s bilateral communications in inducing compliance with IHL is extraordinarily difficult to gauge. As an initial matter, that process is just one of the entry points used by the ICRC, along with the other methods discussed in section 2 above. All of them – public and private, general and situation-specific, preventive and responsive – are employed together, making isolation of the effects of one impossible. Moreover, ICRC interventions may have a delayed effect on compliance by the targeted actors, affect other actors, or produce unanticipated or indirect results for behaviour.38

37

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See e.g. Toni Pfanner, ‘Editorial’, International Review of the Red Cross 88 (2006), 717–718. See generally Rob Howse/Ruti Teitel, ‘Beyond Compliance: Rethinking Why International Law Really Matters’, Global Policy 1 (2010), 127–136.

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If we try to compare compliance by targets with IHL norms in the presence of the ICRC compared to its absence, the ICRC can point to many instances where its confidential work appears to have been the proximate cause of improvement in the situations of victims and compliance by the State or armed group with IHL obligations. These include informing families of the fate of missing relatives and reuniting families, delivery of medical care to conflict zones, and improvement in the conditions of prisoners. Officials believe sincerely that the proper combination of confidentiality, ambiguity and avoidance – along with the selective sharing of some of its information – improves the lives of individual victims and brings gradual systemic compliance.39 Governments and armed groups are generally at least willing to meet with ICRC delegates and hear their concerns. At the same time, governments can use the presence of an ICRC delegation as a fig leaf to argue that their practices conform to IHL. The added value of the ICRC’s presence, controlling for all other factors, seems impossible to determine in any robust sense. Isolating the effects of the individual dimensions of that opacity – confidentiality, ambiguity and avoidance – raises the same concerns. Some highly confidential dialogues have shown results; others have resulted in a stand-off, as the ICRC’s interlocutors refuse to budge or argue that the law is subject to multiple interpretations. Both outcomes seem to have resulted from meetings between the ICRC and the United States over detention. Ambiguity may sometimes lead to improved results; at other times it probably makes no difference. If we compare the ICRC’s work with that of other actors – States and NGOs – evaluation becomes even harder. States can exert more pressure than the ICRC on violators in certain instances, and with better results. Israel, for example, is likely to treat a confidential entreaty from the United States more seriously than a private one from the ICRC. And human rights NGOs can point to instances where the public shaming of a State pushed it to act where private communications failed. Yet again, this comparison seems impervious to robust testing. In the end, the confidentiality that undergirds the ICRC’s work makes it most resistant to assessments of its success, leaving us mostly with stories from delegates or victims. The camps, prisons and theatres of operations it visits; the warriors, detainees and civilian victims it sees; the 39

See e.g. ICRC, ‘ICRC: On the Frontline for the Humane Treatment of Persons Deprived of Liberty’, 15 June 2004, available at: www.icrc.org.

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legal and other arguments it uses; and the behaviour of States and nonState actors before and after ICRC overtures, are mostly hidden from outside scrutiny. Governments rarely acknowledge that their actions result from ICRC interventions; outsiders cannot witness its most important victim-centred operations. The growth of the institution over time, including its significant support from donor governments, suggests that its reputation as the central NGO in the protection of victims of armed conflict is secure. It is difficult to gauge, however, whether that support reflects any international consensus on the ICRC’s success regarding IHL or rather is based on a desire – from empathy, guilt or self-interest – to fund, and be seen as funding, the ICRC’s humanitarian work.

6. Consequences of the ICRC’s Opacity for Compliance and Transparency However difficult it may be to evaluate the effectiveness of the ICRC’s secrecy (in all three dimensions) in the sense of deterring or terminating violations of IHL, the process described above has clear implications for our understanding of the optimal modes of fostering observance of international law. The ICRC’s choices show that the overt invocation of international law – and, a fortiori, its public invocation – does not represent the exclusive or even dominant method for achieving law compliance. That is, achieving compliance with law does not necessitate a public (or even a private) conversation laden with law. Legal argumentation might assist the task, but it can equally undermine it. In general, the relationship between norms and behaviour that matches those norms forms a spectrum from (1) coincidence, or matching by chance, to (2) conformity, or matching only when convenient and with little sense of obligation, to (3) compliance, matching to gain incentives or avoid punishment, to (4) obedience, matching due to a target’s internal acceptance of the norm as part of its value system.40 The ICRC’s modes of argumentation show that it is more than willing to settle for compliance (3), or even conformity (2), given the hurdles associated with obedience (4). That is, the choices that the ICRC and other persuading entities make regarding the dimensions of transparency in their argumentation are choices about how to achieve behaviour 40

Harold Koh, ‘Why Do Nations Obey International Law?’, Yale Law Journal 106 (1997), 2599–2659, 2600–2601, n 3.

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consistent with the law – about respect for law in the broadest sense of the term. They are not seeking to persuade a target to internalize a norm, though they are not opposed to it when that is feasible. This conclusion about the limitations of a focus on obedience is consistent with other theoretical insights about law’s influence on behaviour. International relations scholars recognize that obedience is too much to expect of States and other actors, as well as hard to observe or measure. In the domestic context, Joseph Raz has pointed out that the best law can really expect of individuals is compliance in the above sense (though Raz uses the term ‘conformity’ for that idea).41 Indeed, as the ICRC demonstrates, even institutions that make one of their defining missions the implementation of specific bodies of international law are prepared to forgo obedience for compliance. For them, avoidance of law talk can be just another means to that end. If a State or armed group observes the rules because it has become convinced of the advantages of observance, rather than accepted the rule in its heart, the ICRC is prepared to call its own work a success. For lawyers, a secret or ostensibly ‘non-legal’ persuasive process oriented toward compliance might represent a poor substitute for the rule of law. From the perspective of improving the behaviour of relevant actors, internal acceptance of the rule, either its substance or its bindingness, should remain the long-term goal. The ICRC recognizes this aim through its work on implementation of law, in particular the emphasis on the need for armed forces and groups to develop codes of conduct with sanctions.42 Yet, in the end, international lawyers should not object to compliance compared to obedience, or to a process that achieves compliance through atypical strategies. In the case of IHL, given the obstacles to internalization during armed conflict, the gravity of the violations and thus the urgency of terminating them, and the actors with whom ICRC delegates interact – not typically lawyers in foreign ministries – compliance sounds hard enough. We thus return to the reconciliation of the ICRC’s roles as humanitarian protector and guardian of IHL. By seeking compliance rather than obedience, it offers a resolution of sorts of the internal dilemma between its guardian role and its humanitarian role, though not in the rather simplistic way suggested in its official doctrine.43 Rather, the 41 42 43

Joseph Raz, Practical Reasons and Norms (Oxford University Press, 1990), 178–182. See e.g. Mack (ICRC), Increasing Respect 2008 (n 23), 22–23. See ICRC, ‘Missions and Work’ 2009 (n 2).

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institution interprets its role as guardian of international humanitarian law as one in which it seeks to address the behaviour of actors, and not their words or internal thoughts. Beyond the ICRC, Raz’s insight seems even more compelling at the international level; and sophisticated international actors comprehend that their goal of furthering law compliance can be undercut if they make the target’s legal obligations too prominent during the persuasion process. At the same time, this solution does not fully resolve the tension because the guardian function is still compromised by the layers of confidentiality. Lastly, the ICRC experience also strongly suggests, contrary to the assumptions or findings of other chapters in this volume, that transparency by an institution that promotes compliance with international law as to its legal and factual conclusions and its inner operations is not necessary for compliance or the rule of international law generally. I say this not because the ICRC is a NGO and thus should be treated fundamentally differently from the public institutions in this volume in terms of demands for transparency. Indeed, in a certain sense, the ICRC is similar to a public international organization in terms of its funding and the role played by States at the international conferences that help set its agenda. And those so-called stakeholders continue to support the institution despite – probably because – of its confidentiality. Rather, the more important point is that the ICRC rightly sees itself as accountable to outside constituencies beyond States or some diffuse notion of the public (or academics). Its first and foremost constituency is the victims of armed conflict. In being accountable to them, there is no inherent tension between secrecy as a modus operandi and accountability – although there might be in specific instances, if the ICRC errs too far in favour of confidentiality. There is, then, no imperative of transparency ab initio. To the extent that transparency is defended in terms of advancing accountability, its proponents need to consider that the stakeholders of law and legal institutions may include a wide variety of actors. Secrecy that helps the beneficiaries of the very rules the institution is supposed to uphold or enforce is worth defending.

7. The Ethical Dilemmas of Secrecy The reconciliation of the ICRC’s two roles may not, however, work out as discussed above. At times humanitarian protection might undermine the promotion of IHL. One example is a decision by the ICRC not to press a State or rebel group into following the rules – including by public

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denunciation for serious breaches – because it needs that State or group’s permission for access to victims to provide them with food or medicine. Another takes place when the ICRC accepts the body of an executed hostage to return to his family from a group that refuses to accept the impermissibility of hostage-taking. For the Red Cross, the great normative compliance question is essentially one of dirty hands. Michael Walzer once defined the problem as arising when a governmental act ‘may be exactly the right thing to do in utilitarian terms and yet leave the man who does it guilty of a moral wrong’.44 We can thus inquire whether, when the ICRC acts on its humanitarian imperative to save as many lives as possible through access to victims – the utilitarian course – it creates a moral wrong if, for example, it then refuses to address, and especially publicly address, an episode of torture – an act clearly illegal under IHL – of which it is aware. That moral wrong works from the assumption that the ICRC has a deontologically grounded moral duty not to ignore the known torture victim. Yet the ICRC also has such duties to many others in need, notably civilians suffering from armed conflict, including those to whom the torturing government controls access. It is difficult to claim that its duty to the starving internally displaced person – one that stems from its founding documents – is less important than its duty to the known torture victim, although that case could be made on the gravity of the harm or perhaps the ICRC’s clear knowledge of the fate of this one victim. Given the likelihood that it will be able to help more people if it gets access by not pressing or publicizing the case of the torture victim (and, added to that, the possibility that advocacy on his behalf may not work), a utilitarian logic of asking how it can do the most good for the most people, even if the torture victim languishes unaided, seems justified. The ICRC’s choice seems more akin to triage at a hospital – or, perhaps, bribing the electric company to keep the hospital open during a power outage – than some invidious preference for the ends over the means or collaboration with evil. This seems especially the case in those situations where human rights NGOs may already be publicizing the torture cases (even if they do not know of each case).

44

Michael Walzer, ‘Political Action: The Problem of Dirty Hands’, in Marshall Cohen/ Thomas Nagel/Thomas Scanlon (eds.), War and Moral Responsibility (Princeton University Press, 1974), 63–82.

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Thus, although institutions that see themselves as protecting the welfare of multiple constituencies should be aware of who suffers from their choices regarding allocation of resources, I am not convinced it is immoral for them to make those choices or that they have committed a moral wrong toward those who do not benefit from their choice. Indeed, when the ICRC publicly denounces a violation of IHL, it does so in part as a statement of principle – out of a sense of duty to uphold the norm that is violated – but fundamentally because it believes, based on utilitarian thinking, that such action will ultimately protect victims more than will a confidential approach. This approach to confidentiality also casts doubts on the idea that transparency of an institution dedicated to promoting observance of international law is somehow ethically required. International law is so diverse, and the methods for its application so manifold, that secrecy may indeed be the more ethical stance in terms of the results achieved for the beneficiaries of the rules. Those who see transparency in deontological terms need to reckon with the consequences of that position for those whom the rules were meant to help. At the same time, if the ICRC, acting on a utilitarian calculation, refuses to defend IHL in the face of known torture, it comes at a cost not merely for the torture victim, but for the institution itself. If, at a certain point, an entity whose mission includes promotion of a body of law consistently places that goal second to another value – one we clearly accept as superior (in this case, providing relief to many war victims) – that entity no longer stands for promotion of that body of law, and that body of law suffers. The institution’s identity changes as a result. In the case of the ICRC, if it consistently chooses a particular set of victims over another, or always remains silent based on utilitarian calculations, the ICRC no longer stands for certain principles.

8. Conclusion The modus operandi of the International Committee of the Red Cross offers a compelling counter-narrative to international law’s emphasis on inducing compliance through public identification of violations, detailed interpretation of rules, and procedures for correction of them – whether through pronouncements of States and international organizations, naming and shaming by NGOs, or formal rulings by international tribunals. Instead, depending upon the actors, their dispute, and the forum, it deploys an alternative set of processes – characterized by a

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range of publicity, as well as thickness and directness of legal argumentation. It may not seek the sort of law observance linked with internalization of norms and a narrow notion of the rule of law; but it offers other avenues for success, in particular given the hurdles to internalization of norms during wars or emergencies. Nonetheless, the ICRC lives in a world of constant dilemmas, including dirty hands, and the promotion of law above all can prove destructive of both public order and human dignity. It thus becomes exceedingly difficult to determine how much secrecy the ICRC really needs for its work. Counter-factual scenarios are difficult to identify; certainly some of the successes it has achieved would have been impossible without the various layers of opacity, while others would have happened anyway, and in a way that would have made the ICRC’s promotion strategy more accessible to outside actors. Secrecy has also had its costs in allowing violations to continue as States claim that an ICRC presence is somehow evidence of compliance with IHL. It also, more broadly, deprives other actors of the ICRC’s special expertise in interpreting IHL, expertise that could be invoked in other compliance settings, whether diplomatic or judicial. Certainly, the ICRC can do a better job of explaining to outsiders how it works and why, even without revealing confidences. At the same time, there is much to be said for the access that the ICRC gains as a result of that confidentiality or other layers of opacity; its hesitancy to criticize a government publicly or dictate the law to it too directly may indeed be the price for the access and the resulting humanitarian benefits. This result alone should cause proponents of unfettered transparency of international institutions to rethink the consequences of their position. But perhaps the better question is not how much secrecy the ICRC needs for its work in promoting IHL compliance, but how much secrecy the ICRC needs for itself. For in this regard, the institutional culture seems ingrained from the highest levels to the newest delegates. The mantra can be heard from the Avenue de la Paix to the farthest-flung of the delegations: We are the ICRC. Our only purpose is to help the victims. We do not name and shame. We maintain confidentiality. Secrecy is part of the personality and identity of the ICRC, as much as its neutrality, impartiality and professionalism. To surrender that attribute would simply make it too much like any other NGO. This sort of catechism led to disaster for the ICRC – and, more important, for the people whose deathly fate it chose never to reveal – once in its history, and while it has

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occasionally revealed or denounced grave violations, those remain the exception. This question cannot be answered through doctrine, but through an acculturation that requires delegates and senior officials to ask themselves more often whether confidentiality is achieving the humanitarian purpose or undermining it.

13 How Much Secrecy Does Warfare Need? orna ben-naftali and roy peled

1. Introduction 1.1

The Proposition

Government by secrecy is antithetical to democratic sensibilities. In peacetime, the commitment to uphold democratic values (inclusive of human rights) generates a presumption in their favour: the public has a right to know about both governmental decisions and the processes by which they have been reached, and the government is required to provide information or give good reason for withholding it from the public. Yet, when a State engages in war – an engagement which renders the commitment to democratic values most vulnerable while at the same time affecting the rights of citizens and others in far-reaching ways – the presumption is commonly reversed: the requirements of war, inclusive of secrecy, assume priority over democratic values.1 The norm (and its underlying assumption of peace) is suspended in favour of the exception, war. International law reflects this assumption. In times of peace it recognizes the public’s right to know; in times of war the State’s right to secrecy assumes priority. Thus, whereas international human rights law explicitly recognizes the public’s right to know,2 international 1

2

E.g. International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171 (ICCPR), art. 4 allows signatories to derogate from most of their obligations ‘in times of public emergency which threatens the life of the nation’. See e.g. UNGA, Calling of an International Conference on Freedom of Information, A/RES/59(I), 14 December 1946, stating: ‘[f]reedom of information is a fundamental human right’; UN, Economic and Social Council, Question of the Human Rights of All Persons Subjected to Any Form of Detention or Imprisonment – Promotion and Protection of the Right to Freedom of Opinion and Expression: Report of the Special Rapporteur, Mr Abid Hussain, Pursuant to Commission on Human Rights Resolution

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humanitarian law (IHL) is essentially silent on the matter, a silence reflecting a presumption favouring a State’s right to secrecy.3 It is for this reason that most international instruments4 and national freedom of information laws5 recognizing the right to information contain a ‘national security’ exemption which, more often than not, excuses the need to balance it against other public interests;6 that courts tend to defer to the relevant State agencies advancing the need to withhold information for reasons of security without much ado,7 and that the public at large readily accepts that its right to receive information should take a back seat when the State drives to or is at war.8

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1993/45, E/CN.4/1995/32, 14 December 1994, para. 35; UNGA, Universal Declaration of Human Rights, A/RES/217(III) A, 10 December 1948, art. 19; ICCPR, 1966 (n 1), art. 19; UNGA, Report of the United Nations Conference on Environment and Development, A/ CONF.151/26 (Vol. 1), 12 August 1992, annex 1: Rio Declaration on Environment and Development; Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters, 25 June 1998, 2161 UNTS 447 (entered into force 30 October 2001); Council of Europe Convention on Access to Official Documents, 18 June 2009, CETS No. 205. It is for this reason, for instance, that prisoners of war cannot be forced to reveal information (see art. 17 to the Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135) (Geneva Convention III) or that ruses of war are permissible (see Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict (Protocol I), 8 June 1977, 1125 UNTS 3, art. 37(2) (AP I)). See e.g. Convention on Access to Information, 1998 (n 2), art. 4(4)(b); Council of Europe Convention, 2008 (n 2), art. 3; Inter-American Commission on Human Rights, ‘InterAmerican Declaration of Principles of Freedom of Expression’, 19 October 2000, available at: www.iachr.org, art. 4; Arab Charter on Human Rights, 22 May 2004, reprinted in International Human Rights Reports 12(893) (2005), art. 32. At the time of writing, there are ninety such national laws with Rwanda being the latest State to enact one. The list of freedom of information laws, and an overview of each, is available at: www.right2info.org. The exemption is made either directly or indirectly, through reference to other laws, such as ‘State secrets’ laws. See, David Banisar, Freedom of Information around the World 2006: A Survey of Access to Government Information Laws (London: Privacy International, 2006), 30. See e.g. US Court of Appeals, Military Audit Project v. Casey, Decision of 4 May 1981, 656 F 2d 724 (DC Cir. 1981); US Court of Appeals, Wilson v. CIA, Decision of 12 November 2009, 586 F 3d 171 (2nd Cir. 2009), 185; US Court of Appeals, James Madison Project v. CIA, Memorandum Opinion of 19 March 2009, 605 F Supp 2d 99 (DC Cir. 2009). See generally, David Banisar, Legal Protection and Barriers on the Right to Information, State Secrets and Protection of Sources in OSCE Participating States (London: Privacy International, 2007). E.g. a 2010 poll found that a majority (albeit slight) of Americans thought leaks about US misconduct in the Afghan War more harmful than beneficial to the public interest. See Pew Research Center Publications, ‘Public Sees Wikileaks as Harmful’, 8 December 2010, available at: pewresearch.org; see also, Sessila Bok, Secrets: On the Ethics of Concealment

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The main proposition advanced in this chapter is three-fold: first, that the international legal regulation of war has not paid the issue of transparency the attention it deserves. Such attention may well advance its objectives. Second, that while war requires secrecy, the scope of the latter is far less extensive than is otherwise assumed and granted. Third, that the presumption in favour of secrecy during wartime should be reversed, requiring government officials to shoulder the burden of proof to justify why secrecy is necessary in any particular matter, so as to allow for a differentiation between legitimate secrecy and its overkill. This proposition rests on the following arguments: (1) the actual instances of a conflict between the requirement of secrecy relative to war and transparency are far less common than is alleged; (2) when such a conflict does occur, the superiority of war needs should not always be taken for granted; and (3) when war needs do acquire superiority, they do not necessarily rule out, and at times indeed require, partial or delayed disclosure or resort to intermediate mechanisms for oversight and accountability. Like all propositions, ours too rests on a presupposition. It is that the need for the public to stand on its critical toes is particularly important in times of an alleged threat to national security. Unlike the presupposition which deflects criticism in times of war, ours does not rest on a Hobbesian hypothesis, but rather on an assessment of the experience with the discursive practices of secrecy relative to national security in the light of democratic principles grounded in a Lockean social contract. In normative terms, while recognizing that exceptions to a norm are, at times, required, we maintain that it is the rule that drives the exception and that, therefore, the latter should be narrowly construed.9 While history may not teach us many lessons, it has made it amply clear that the Schmittian political theology wherein the norm is subservient to the exception is a perversion of the rule of law.10

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and Revelation (New York: Pantheon Books, 1989), 192–193; for an argument supporting this relaxation of the public’s right to know, see Gabriel Schoenfeld, Necessary Secrets: National Security, The Media and the Rule of Law (New York: W.W. Norton & Co., 2011), 259. Dieter Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts (New York: Oxford University Press, 1995), 211. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (George Schwab trans.) (University of Chicago Press, 1988), 15.

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1.2 The Structure of the Chapter Section 2 focuses on the nature of the security discourse. The normative regulation of this discourse, its praxis, and the gap between the normative and the combative worlds, as they relate to all phases of war, are discussed in sections 3–5. This discussion discloses the inadequacy of current regulation to contain the inherently expansive security discourse, and substantiates the notion that, as a rule, information relative to the reasons for a prospective war, the conduct of the war, and accountability for both (impacting respectively on the ius ad bellum, the ius in bello and the ius post bellum) is owed to the people and the nations affected by it. Exceptions may be granted, provided they do not confuse between the exception and the rule. Substituting the former for the latter turns the rule of law on its head. Section 6 concludes. The international legal framework attempting to regulate war as an exception to the normal course of international life is thought of in terms of linear time. Hence the distinctions between the ius ad bellum, the ius in bello and the ius post bellum. While structurally we discuss the relevance of transparency to the regulation of war along these traditional dichotomies, it is important to note that taxonomic elegance notwithstanding, current warfare defies the viability of these distinctions on various levels.11 In an era where war refuses to be contained by the boundaries of either space or time,12 the time has come to reconsider the relevance of distinctions based on time. It does not follow that the traditional objectives behind the regulation of the various faces of war have changed: there remains ample reason to eliminate unnecessary resort to force, to minimize the harm the use of force causes and to investigate breaches of both, but these objectives are no longer served by a linear conception of time. They are better served, as we seek to substantiate, by information about whether there is a need for a war; whether its prolongation serves a feasible purpose and presents the only available option; whether it is conducted in a manner that is excessively harmful in relation to the feasibility of achieving its ends; and whether there are mechanisms ensuring that such excessiveness is 11

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E.g. Eyal Benvenisti, ‘Rethinking the Divide between the Jus ad Bellum and the Jus in Bello in Warfare against Non State Actors’, Yale Journal of International Law 34 (2009), 541–548. E.g. Kenneth Anderson, ‘Targeted Killing and Drone Warfare: How We Came to Debate Whether There is a “Legal Geography of War”’, 2011, available at: www.futurechallen gesessays.com.

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checked and that perpetrators of war crimes are being brought to justice. It is factual transparency throughout, rather than the fiction of delineated time, which reflects, and invites reflection about the current face of war.

2. The Secret Charm of the Security Discourse: Power/ Knowledge and the Presumption of Secrecy 2.1

The Organization of War and the Politics of Knowledge

It is a chilly spring day in 1624, the sixth year of what would eventually become the Thirty Years War. A sergeant and an officer, assigned to recruit soldiers for the Swedish war in Poland, are standing shivering on a main road outside Dalarna. The townspeople, alas, do not seem too keen to go to war. Understandably, the soldiers are vexed: Sergeant: What they could use around here is a good war. What else can you expect with peace running wild all over the place? You know what the trouble with peace is? No organization. And when do you get organization? In war. Peace is one big waste of equipment. Anything goes. No one gives a damn . . . In war, everyone registers; everyone’s name is on the list. Their shoes are stacked, their corn’s in the bag, you count it all up – cattle, men et cetera – and you take it away! That’s the story: no organization, no war. Recruiting officer: it’s the God’s truth.13

A year later, in 1625, Hugo Grotius published De jure belli ac pacis. Reflecting, in the prologue, on the reasons for undertaking this project, he wrote:14 Throughout the Christian world I observed a lack of restraint in relation to war, such as even barbarous races should be ashamed of; I observed that men rush to arms for slight causes, or no cause at all, and that when arms have once been taken up there is no longer any respect for law, divine or human; it is as if, in accordance with a general decree, frenzy had openly been let loose for the committing of all crimes.

That particular war ended in the 1648 Peace of Westphalia, traditionally marking the birth of the multi-State system, each sovereign within its territory and equal to the others regardless of religion and form of 13

14

Berthold Brecht, Mother Courage and Her Three Children (New York: Grove Press, 1963), scene 1. Hugo Grotius, The Law of War and Peace (Francis Kelsey trans.) (Washington DC: Carnegie Institute, 1925), prologue, section 28.

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government (and ergo the principle of the plurality of truths, including God’s), the founding of modern, laicized international law, and the first attempt to subject the use of force to legal constraints.15 Whether one subscribes to the sergeant’s disgust with peace or to Grotius’s horror of war; to the cynical realism of von Clausewitz that war is a continuation of politics by other means, or to the bitter irony with which Berthold Brecht proposes, in Mother Courage, that war is a continuation of business by other means – all perspectives suggest that war and organization are mutually constitutive: it is not just that war brings the organization of society, but that the organization of society presupposes and generates war.16 That organization rests on and produces a power/knowledge discourse. The latter, in turn, contributes to the eventuality of war. The familiar Baconian engineering model suggested that ‘knowledge is power’; an instrument of power, still allowing for each to exist independently of the other.17 Michel Foucault suggested a far more symbiotic relationship: knowledge and power cannot be separated; ‘in knowing we control and in controlling we know’.18 Indeed, the original Weberian insight that the ‘power instinct’ of every bureaucracy thrives on a poorly informed parliament, an instinct which accounts for the invention of the ‘official secret’ which the bureaucracy ‘fanatically’ defends,19 received, in Foucault’s work, its architecture and expansion as well as its critical bite.20 15

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Leo Gross, ‘The Peace of Westphalia, 1648–1948’, American Journal of International Law 24 (1948), 20–41. On the international level, this is evidenced in both the ius ad bellum and the ius in bello: both assume that the organization of the international society of sovereign States will not prevent war and settle for minimizing its eventuality and effects. Francis Bacon, The Works of Francis Bacon, vol. X (London: Printed for C. and J. Rivington et al., 1826), 308; the English translation is in Francis Bacon, Meditationes Sacrae and Human Philosophy (Whitefish: Kessinger Publishing, 2005), 71. Gary Gutting, ‘Michel Foucault’, 17 September 2008, available at: http://plato.stanford. edu/entries/foucault; Michel Foucault, Discipline and Punish: The Birth of the Prison (Alan M. Sheridan trans.) (New York: Pantheon Books, 1977). Max Weber, Essays in Sociology (Hans H. Gerth/Charles Wright Mills eds./trans.) (New York: Oxford University Press, 1946), 233–234; Max Weber, Wirtschaft und Gesellschaft (Economy and Society) (Tübingen: Mohr, 1922). Michel Foucault, The Archaeology of Knowledge and the Discourse of Language (Alan M. Sheridan trans.) (New York: Pantheon Books, 1972). Foucault uses the term ‘genealogy’ as a means to excavate a counter-discourse, subjugated forms of knowledge, i.e. knowledge which the dominant forms of knowledge confined (in the clinic or the prison) or otherwise disqualified and silenced.

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The claim to ‘truth’, says Foucault, in all discursive formations and practices is based on institutionalized exclusion: the authority enjoyed by the ‘insider’ is sanctioned by a sophisticated system of regulation, including education, training, promotion etc., creating a preference for and deference to the relevant elite.21 These systems are thus inherently based on exclusive access to information.22 Given the elite’s vested interest in augmenting its status, increasing its value and shielding its mandarins from exposure to criticism, the classification of information and the ensuing requirement of exclusive access become an effective means to these ends. Herein resides the palpitating heart of institutional secrecy. This politics of knowledge characterizes all professional discursive systems, but nowhere is it more prevalent, more sanctified,23 and more dangerous to democratic values than in the ‘national security’ discourse.

2.2

The ‘National Security’ Discourse and its Discontent

‘National security’ is a powerful, deeply entrenched and tightly regulated discourse.24 Established to protect the interests of the people, it precludes the latter’s participation in decision-making processes in matters that affect those interests most, reinforcing the status of national security policy as an object of discourse better left to the qualified intelligence elite.25 Protection of a variety of interests is at times clearly required, but it is already, always also an opportunity for control; protection of survival invites the ultimate control. Located at the junction where the Hobbesian tradition of thinking about power as a means for the survival of the sovereign meets the Machiavellian tradition of thinking about

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Ibid., ch. 4. It should be noted that disclosure of information might in itself be a tool redistributing power, when the disclosed information is, for practical matters, more accessible to one group over the other, or when one group is better situated to make use of it than others. See Benedict Kingsbury/Megan Donaldson, ‘Power and the Public: The Nature and Effects of Formal Transparency Policies in Global Governance Institutions’, chapter 19 in this volume. Bok, Secrets 1989 (n 8), 172–173. Hamilton Bean, ‘Foucault’s Rhetorical Theory and US Intelligence Affairs’, Poroi 6(2) (2009), 15–32. This argument is frequently raised in the internal Israeli debate on the merits of a preemptive strike in Iran. See, Yechezkel Dror, ‘Here’s How to Decide Whether to Support an Attack on Iran’, 7 November 2011, available at: www.haaretz.com.

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power as a means for more power,26 it is little wonder that the discursive practices of ‘national security’ are as hostile to restrictions as they are antithetical to democratic sensibilities. Military and security organizations generally, and a fortiori in times of national emergency, are authorized to exercise destructive power in its literal sense. The combination of their raison d’être – the preservation of the people – with the latter’s existential angst provides the breeding ground for a discourse the secrecy of which appears self-evident: even a sophisticated citizenry which otherwise voices healthy suspicion towards its leadership as a matter of course, tends to bestow uncritical faith on that very leadership when it comes to matters designated as ‘national security’.27 Indeed, the observation that critical voices in times of perceived threats to that security are often heard as tolling the bells of betrayal underscores the fantasy that faith in the military establishment would make it better able to protect the people in a manner that shifts the cost of war only on the enemy. Tellingly, it is this very fantasy which nourishes the belief that silent enim leges inter arma.28 Ultimate faith in power, however, is a luxury neither a democracy nor the rule of law, nor indeed people and the international society, can afford. Such faith is likely to scar the democratic profile of a State, and challenge the viability of international law as a system that purports to limit, rather than merely apologize for, power.29 Not least, it may also undermine the very security it wishes to strengthen.30 26

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Thomas Hobbes, Leviathan: Or the Matter, Form and Power of a Commonwealth Ecclesiastical and Civil (Chicago: Encyclopaedia Britannica, 1984); Nicolló Machiavelli, The Prince (Tim Parks trans.) (Cambridge: Proquest LLC, 2011). See John Mueller, War, Presidents and Public Opinion (Lanham: University Press of America, 1985); Christopher Gelpi/Peter Feaver/Jason A. Reifler, Paying the Human Costs of War: American Public Opinion and Casualties in Military Conflicts (Princeton University Press, 2009); Adam J. Berinsky, In Times of War: Understanding Public Opinion from World War II to Iraq (University Press of Chicago, 2009); Matthew A. Baum/Tim J. Groeling, War Stories: The Causes and Consequences of Public Views on War (Princeton University Press, 2010). Marcus T. Cicero, Pro Milone (Nevile H. Watts trans.) (Cambridge Mass.: Harvard University Press, 5th edn, 1972). In reference to Martti Koskeniemmi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge/New York: Cambridge University Press, 2005). The international legal regulation of war is premised on the assumption that in times of war the laws ‘may be changed but they speak the same language in war as in peace’. See Lord Atkin in UK House of Lords, Liversidge v. Anderson, Decision of 3 November 1941, [1942] AC 206; [1941] 3 All ER 338, 361. Anne Peters, ‘Transparency, Secrecy, and Security: Liaisons Dangereuses’, in Julia Iliopoulos-Strangas/Oliver Diggelmann/Hartmut Bauer (eds.), Rechtsstaat, Freiheit und Sicherheit in Europa. Rule of Law, Freedom and Security in Europe. État de droit,

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Indeed, the risks normally attached to secrecy, especially loss of checks and balances to power and the ensuing risk of irresponsible decisions made in the cosy environment of impunity, are augmented in matters of security.31 This is so not only because of the sui generis character of the military institution and the nature of the national security discourse, but also because the cost is ultimately borne by the people (on all sides of the conflict) excluded from it. Insofar as a culture of secrecy generates a sense of impunity, thereby creating the conditions of possibility for the commission of war crimes, the latter should be included in said cost.32 It does not follow that there is neither value in, nor justification for, secrecy in matters of national security. But it does follow that there is a need to differentiate between its core and penumbra. The core of ‘national security’ is less obscure than the obfuscated discussion surrounding it suggests: it includes any piece of information which offers a substantial operative advantage to military rivals, one that supports the latter’s expected attempts to inflict physical damage on the State, its military and its citizenry, or to impede the State’s effort to gain necessary military advantages. This would embrace, for instance, plans for military operations; intelligence information that is to be used to jeopardize rival operations, or the disclosure of which may assist the rival in preventing future collection of valuable intelligence; location of forces the rival is looking to attack; security loopholes in national cybernetworks and national infrastructures, and similar pieces of information which, once disclosed, would cause damage to national security. It is this kind of information that the exemption from disclosure of ‘State secrets laws’ and ‘national security’ in freedom of information laws and

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liberte´ et se´curite´ en Europe, Societas Iuris Publici Europaei, vol. 6 (Baden-Baden: Nomos, 2010), 183–243. This, presumably, is the source for the vast interest the balance between national security needs and the right to know has generated in various national discourses. For an overview of such discourse in the mid-1990s in seventeen countries, see Sandra Coliver et al. (eds.), Secrecy and Liberty: National Security, Freedom of Expression and Access to Information (The Hague: Kluwer Law International, 1999), 187–518. The Open Society Institute has recently launched a multilateral consultation on the formation of principles on national security and the right to information. For the draft’s full text, see Right2Info, ‘National Security Principles and the Right to Information’, available at: http://right2info.org, para. 5 (updating the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, International Standards Series (London: Article 19, 1996). Such risks further include eventual loss of public trust, generating undue suspicion of information that is released and a tendency towards conspiracy theories; waste of public funds and corruption and the weakening of protection due to the most important information. See Banisar, Legal Protection and Barriers 2007 (n 7), 12–13.

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international instruments was ostensibly designed to protect. Between the design and reality, alas, lurks the security discourse. Given its nature, it is little wonder that the penumbra is clouding the core and the exception becomes the rule in matters relative to the very decision to go to war, decisions made during the war, and expectations of impunity thereafter. This is substantiated in sections 3–5 below.

3. The Road to War is Paved with Secret Intentions: Implicating the ius ad bellum 3.1

The Normative Framework: The Road Hardly Taken

Once upon a time, waging war was a sovereign, indeed kingly prerogative subject to neither international nor domestic legal limitations. That time is no more. Currently, the decision to engage in war is limited by both international and national normative constraints.33 The role a secretive security discourse plays in the decision to engage in war has not, alas, been considered in the design of the normative framework. Much to the detriment of its objective, it has failed to regulate explicitly the scope and substance of the evidence required for the substantiation of a lawful reason to use force. The UN Charter sets forth the relevant international normative framework: the norm, articulated in article 2(4), prohibits the use of force in international relations. This prohibition allows for two exceptions: the use of force is authorized either pursuant to a Security Council decision on collective security action taken under Chapter VII, or in individual or collective self-defence ‘if an armed attack occurs’, under article 51. Either case requires substantiating the necessity for the use of force, though in the case of self-defence said substantiation may be provided ex post facto. The law, however, is silent on what this substantiation entails. It is thus necessary to construe a plausible standard. The need to premise the use of force in self-defence on the occurrence of an armed attack is ‘the condition sine qua non for the exercise of the right’.34 In order to lawfully exercise said right, it is necessary to provide 33

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For a study of such requirements in constitutional laws of nine major democracies, see Charlotte Ku/Harold K. Jacobson, Democratic Accountability and the Use of Force in International Law (Cambridge University Press, 2003). ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits), Judgment of 27 June 1986, ICJ Reports 1986, para. 237. The Court referred to the right to collective self-defence, but the same rationale applies to the right to individual self-defence.

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substantiating evidence of the factual occurrence of an armed attack and the identity of the perpetrator.35 International tribunals have consistently asserted that the burden of proof rests with the party who relies on a factual contention.36 One implication of said arrangement is to construct narrowly the sanctioning of ‘preventive’ or ‘anticipatory’ selfdefence to situations where it can be demonstrated that the relevant question was not whether an armed attack would occur but when would it occur. This is so because without an attack actually occurring, the examination of the necessity of the response or its proportionality in relation to the anticipated threat is based on conjecture rather than tangible, readily assessed evidence. The second, and derivative, implication concerns the standard of proof required to substantiate either eventuality. International law is yet to articulate explicitly such a standard, a point addressed in section 3.3 below. The varied substantive and procedural domestic constraints on engaging in war stem from, and in turn reflect, democratic processes and require, in principle, free flow of relevant information and, indeed, public support. On the procedural level, it is clear that if Parliament is to approve the use of military force, it must be given the information relative to the decision.37 Further, given that public participation is a central feature of any democratic regime, political leadership should provide its constituency with as much reliable information as possible so as to enable it to form an opinion regarding the necessity to resort to war. Failure to do so is, at least theoretically, expected to generate scepticism among those asked to bear the human cost of war and diminish public support.38 35

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Jonathan I. Charney, ‘The Use of Force against Terrorism and International Law’, American Journal of International Law 95 (2001), 835–839, 836. ICJ, Case Concerning Oil Platforms (Islamic Republic of Iran v. United Sates of America), Judgment of 6 November 2003, ICJ Reports 2003, para. 57 (determining that the US failed to discharge the burden of proof that the missile was fired by Iran, thus constituting an armed attack); see generally, Mojtaba Kazazi, Burden of Proof and Related Issues: A Study on Evidence Before International Tribunals (The Hague: Kluwer Law International, 1996), 221–223; E. Valencia-Ospina, ‘Evidence Before the International Court of Justice’, International Law FORUM du Droit International 1 (1999), 203–207, 203; Mary E. O’Connell, ‘Rules and Evidence for the Use of Force in International Law’s New Era’, Proceedings of the Annual Meeting (American Society of International Law) 100 (2006), 44–47. Some countries require explicit parliamentary approval for war engagement, e.g. art. 35 of the French Constitution; section 19(2) of the Danish Constitutional Act. Some require informing and debating in parliament, e.g. art. 100 of the Netherland Constitution. See Mark A. Chinen, ‘Secrecy and Democratic Decisions’, Quinnipec Law Review 27 (2009), 1–53.

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Self-defence may or may not be relevant to this support. It is quite possible for a State to receive domestic public support for engaging in war, even if it is carried out for reasons other than self-defence, let alone without the occurrence of an armed attack, but it is illegal to do so from the perspective of international law. Conversely, a State may be subject to an armed attack which, from an international legal perspective, justifies the use of force in self-defence, but it may well decide that its best defence is in refraining from using force. The international and the domestic requirements thus complement each other: both presume that war is an exception to the normal course of international and national life, both require justifications to legitimize the exception, and the synergetic relations between the two should render it more difficult for officials to lie. The coupling of their respective requirements has the potential of providing a greater compliance-pull than would have been otherwise available. Realizing this potential, alas, is often a road not taken. This assessment is substantiated below.

3.2

The Bumpy Road to Compliance: The Praxis of Secrecy

The 5th of February 2003 is likely to be remembered by then US Secretary of State, Colin Powell, as the low point of his otherwise impressive military and political career. On that day, seeking the Security Council’s endorsement for collective action against Iraq in view of its alleged possession of weapons of mass destruction, Colin Powell stated:39 ‘[m]y colleagues, every statement I make today is backed up by sources, solid sources. These are not assertions. What we’re giving you are facts and conclusions based on solid intelligence. I will cite some examples, and these are from human sources’. The ‘facts’ presented to the Security Council were later found to be lies told by an Iraqi defector (codenamed ‘Curveball’) to the German intelligence agencies and delivered by them to their US counterparts.40 Significantly, it is now known that doubts regarding the reliability of this source surfaced long before 2003. In 2007 Colin Powell said in a televized interview:41 39 40

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The full text of Powell’s speech is available at: www.guardian.co.uk. Martin Chulov/Helen Pidd, ‘Defector Admits to WMD Lies that Triggered Iraq War’, 15 February 2011, available at: www.guardian.co.uk. ‘“Meet the Press”: Transcript for June 10, 2007 – Colin Powell on the War in Iraq, Decision 2008 and Much More’, updated 6 October 2007, available at: www.msnbc.msn. com.

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One of the things I’m most irate about is that I have reason to believe in, in, in the CIA, the nights we were out there till midnight, every night putting this presentation together, trying to make it airtight, there were people in the room who knew that burn notices had gone out on some of these sources, and that was not raised to me.

Officials in the US Intelligence community thus decided to conceal information both from their superiors and the public at large. Thereby, as Colin Powell implies, they cultivated an environment that was very hospitable to the idea of waging war. They were not alone. British diplomats and politicians, while being quite sceptical of the public justifications given for waging that war, concealed their misgivings in a series of memos classified as ‘confidential’,42 and laboured to convince the public of the necessity for the war. Thus, a memo sent by a Foreign Office official to the Foreign Secretary reads:43 The [Iraqi] programmes are extremely worrying but have not, as far as we know, been stepped up. US scrambling to establish a link between Iraq and al-Qaida is so far frankly unconvincing. To get public and Parliamentary support for military action, we have to be convincing that the threat is so serious/imminent that it is worth sending our troops to die for; it is qualitatively different from the threat posed by other proliferators who are closer to achieving nuclear capability (including Iran).

The assessment of British officials that the foundation upon which the war was justified was quite shaky did not hinder them from proposing, as the memo proceeds to specify, public opinion strategies that could generate public support for sending ‘troops to die’. These stories are not unique. The national security discourse has continuously trumped both normative objectives and democratic sensibilities. The coupling of the classification system with the commonly held belief that nearly all war-related information merits secrecy, has served to conceal from the public information that had little to do with national security and much to do with securing public support for war. While there may always be a thin line between secrecy and deception, the line thus crossed not only does not hold water, it is also as thick as, well, blood. The ‘Pentagon Papers’ provide the most notorious example. 42

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Michael Smith, ‘Secret Papers Show Blair Was Warned of Iraq Chaos’, 18 Sep 2004, available at: www.telegraph.co.uk. Mark Danner, The Secret Way to War: The Downing Street Memo and the Iraq War’s Buried History Memo (New York: New York Review of Books, 2006), 140–141.

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‘The papers’ comprised a 7,000-page study of US–Vietnam relations in the period leading to the Vietnam War and during that war up to 1967. It included thousands of classified government documents, offering an understanding of the reasons for the US launching the war, and maintaining the offensive, that were far more genuine than those offered to the public. One of the ‘top secret’ documents included the definition of a senior pentagon official of the aims of the US action plan for South Vietnam in March 1965: ‘70% to avoid a humiliating US defeat’.44 The ‘Pentagon Papers’ is not the only example. Thus, for instance, following the 2006 Israel–Lebanon war, a governmental inquiry commission was formed in Israel. The commission chose to hold most of its hearings, in which the country’s highest ranking politicians and military officers testified, behind closed doors. Accepting a petition by an antiwar politician, the Supreme Court ordered the disclosure of the hearings’ minutes.45 The latter revealed the misgivings of various cabinet members, including ex-Prime Minister (and current President) Shimon Peres regarding the wisdom of launching the war. The British government to this day refuses to release minutes of its meetings leading up to the Iraq war. In response to an order to disclose the minutes issued by the UK’s Information Tribunal,46 Justice Minister Straw used the veto power conferred on him by the freedom of information act to avoid disclosure.47 Manipulating the public discourse to gain support for war is the Ariadne’s thread that coheres these secrets: they had little to do with national security proprio motu; the planning of the war, or its operational requirements. The security discourse thus collides with both the democratic and the normative discourses: the opposition of Israeli cabinet ministers to the second Lebanon war; the true objectives of the Vietnam War; the reluctance of British officials to accept the US narrative for the Iraq war; and the unreliability of information provided by the CIA main

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John T. McNaughton, ‘Plan of Action for South Vietnam (24 March 1965 – first draft)’, in United States–Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense (Pentagon Papers), available at: www.mtholyoke.edu. Supreme Court of Israel sitting as the High Court of Justice, MK Zehava Galon v. Commission of Inquiry to Investigate the Conduct of the 2006 Lebanon Campaign, 6 February 2007, HCJ 258/07. Deborah Summers, ‘Timeline: Events Leading up to Jack Straw’s Decision to Withhold Minutes’, 24 February 2009, available at: www.guardian.co.uk. This was the first and only time in the law’s seven years of existence that this power was used. UK Freedom of Information Act 2000, 2000 c. 36, art. 53(2).

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source on Iraq, could and should have all played an important role in the public debate leading to these wars and in the assessment of their legality. Indeed, once such information is disclosed, either through leaks or court orders, evidence of harm to national security is hard to find and different assessments of the casus belli often surface. Thus, when the ‘Pentagon Papers’ began to appear in the press, the US government turned to the courts to seek an injunction to prevent their publication. The Supreme Court ruled against the government.48 Tellingly, in preparing for the case, it became clear that even government officials did not think the secrecy attributed to ‘the papers’ was justified: when the solicitor appointed to represent the government in the Supreme Court asked top officials from the Defense and State Departments and from the National Security Agency to single out those documents that if disclosed ‘would be a real threat to the security of the United States’, the number shrunk, within a few hours, from 4,000 (the total number of classified documents in ‘the papers’) to 40.49 It took the solicitor a quick read through these documents to reach the conclusion that only eleven of these really justified secrecy.50 The court disagreed even with this assessment. Twenty years later, solicitor Erwin Griswold admitted as follows:51 ‘I have never seen any trace of the threat to national security from the publication . . . It quickly becomes apparent to any person who has considerable experience with classified material that there is massive over-classification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another’. That telling tale has an amusing, if not altogether happy, ending: it took the US government forty years to declassify the leaked papers.52 Even on that occasion, it insisted on redacting eleven words from the documents fully disclosed long ago. Only when the relevant bureaucrats realized that doing so would draw more attention to the sentence in question, was this intention reversed.53 48

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US Supreme Court, New York Times Co. v. United States, Decision of 30 June 1971, 403 US 713 (1971). Erwin N. Griswold, ‘Secrets Not Worth Keeping: The Courts and Classified Information’, Washington Post (15 February 1989), A25. Ibid. 51 Ibid. Michael Cooper/Sam Roberts, ‘After 40 Years, the Complete Pentagon Papers’, The New York Times (8 June 2011), A12. The opening sentence of the report is worth quoting here: ‘[i]t may be a first in the annals of government secrecy: [d]eclassifying documents to mark the anniversary of their leak to the press’. Sam Roberts, ‘Finding the 11 Secret Words’, The New York Times (24 July 2011), SR12.

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One conclusion to be drawn from the above is that the decision to go to war requires less secrecy than is commonly believed. This conclusion is often challenged on two main grounds. The first concerns the need to protect sources; the second posits the threat to national unity that an informed debate may generate, as a national security liability. The first challenge would posit, for instance, that had the US disclosed at any point that one of its informers had lied, it would have risked the exposure of its sources. The first response to this challenge is to note the massive reliance on intelligence information in the Secretary of State’s presentation to the Security Council. More generally, governments tend to disclose without much ado information gathered from intelligence sources when such disclosure is deemed beneficial for the generation of support for their view on launching a war. A democracy is expected to allow all views to be heard and empower people holding different views to effectively promote them in the free market of ideas. It is thus expected that any piece of information used by the government to gain support for war be made equally available to other groups and the public at large. The reliability of a major source of information supporting the need to go to war is critical information. The claim that its exposure would aid the enemy must be questioned. Often it is the public that is kept in the dark from information well known to the enemies themselves, including the use of informers. Surely, at times, maybe even often, such sharing of information may genuinely compromise military efforts, and justify secrecy. It does not follow, however, that secrecy automatically trumps disclosure. The democratic expectation of disclosure and the normative requirement for substantiation need to be weighed against the alleged need for secrecy in the specific circumstances of each case. Those in power are almost always exclusively in a position to carry out this assessment. Given both the nature of the security discourse and experience, the likelihood that they will do so in a manner attuned to democratic sensibilities and respectful of normative requirements is low. The second challenge posits that exposing uncertainty in the context of waging war may indeed harm national security: the unity of a people is a strategic asset in war, and can only be mobilized by temporary suppression of disputes. Release of controversial information may fuel disputes, thus presenting a strategic liability. This argument rests, at best, on shaky empirical grounds: the success rate of democracies at war is much higher than that of non-democratic regimes.54 This finding 54

Specifically, a survey showed democracies to win 93% of wars they initiated and 63% of wars targeted at them, as compared with 60% and 34% respectively for dictatorships. See

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is commonly attributed to the effect of relatively transparent decisionmaking processes: public opinion restrains adventurous and risky foreign policy decisions. This attribution rests on a qualifying assumption.55 An important assumption of this perspective is that consent cannot be easily manufactured by democratic leaders. If democratic leaders could manipulate public opinion into supporting military ventures, then of course public opinion would provide little constraint on democratic foreign policy, as it could be actively moulded to support the foreign policy aims of the leadership. Domestic public constraints on the waging of war are thus akin to international legal constraints. Both are mutually reinforcing. Both require that relevant and substantiated information as to the existence of an imminent threat that justifies the use of force be disclosed to function in a manner that advances their objectives. Neither requires the disclosure of core secrets. What they do require are methods and means that allow for a proper distinction between the core and the penumbra. Such methods and means are discussed in the following sub-section.

3.3

Paving the Road Ahead

This sub-section proposes four means and methods to overcome the ills of excess of secrecy relative to the decision to engage in war.

3.3.1

A Rigorous Standard of Proof for an Occurrence of an Armed Attack As noted above, the applicable international legal framework requires a State which claims the right to use force in self-defence to provide substantiating evidence of the factual occurrence of an armed attack and the identity of the perpetrator. Neither the UN Charter nor the case law provide a clear standard of proof against which the persuasiveness of the contention is to be measured: while the International Court of Justice (ICJ) has found such allegations to have failed to be persuasive, it has nevertheless refrained from specifying a standard.56 Given that the use of force in self-defence is an exception to the rule; the fact that it is initially

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Dan Reiter/Allan Stam, Why Democracies Win Wars (Princeton University Press, 2002), 29. Ibid., 146. ICJ, Nicaragua (Merits) (n 34), paras. 54, 110, 159 and 216; ICJ, Oil Platforms (n 36), para. 57 (in both cases the ICJ determined that there is not sufficient evidence to establish the lawfulness of self-defence argued by the US); ICJ, Armed Activities on the

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self-assessed; and the propensity of all States to claim that they are using force in self-defence: ergo, given the potential for abuse, such a standard is required.57 Careful reading of pertinent judgments of the ICJ has led scholars to conclude that the ICJ had implicitly employed the standard of ‘clear and convincing’ evidence to the contention that an armed attack justifying the use of force had occurred.58 It is submitted that this standard is appropriate: it is relatively clear and it is likely to introduce a muchneeded level of certainty with respect to the use of force and, most significantly, to articulate a clear expectation States are to meet. It thus has the potential of limiting both abuse and the very use of force.

3.3.2 Delayed Disclosure Let us assume that Israel was indeed under attack which justified the use of force in self-defence in the second Lebanese war in 2006. Let us further assume that there was an operational necessity to retaliate within that same day, rendering the disclosure of cabinet meetings undesirable, as it could have caused confusion among reserve soldiers as to the government’s decision. A similar assumption could equally be made regarding the UK cabinet minutes, the disclosure of which was vetoed by Justice Minister Jack Straw. Such reasons for maintaining secrecy are clearly time-limited. While their political implications and sensitivities might not change for a long period of time, they themselves cannot justify secrecy any more than do political sensitivities surrounding a tax increase debate. It is clear that the operational sensitivity of this information is reduced dramatically once the war has been launched and more so once it is over. Yet, most governments customarily tend to keep

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Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, ICJ Reports 2005, paras. 55–71 (determining that there was not enough evidence to suggest that Uganda was responsible for any armed attack, as distinct from prima facie evidence to establish a more general breach of international law). For concerns regarding the ICJ’s refusal to articulate a precise standard of proof, see ICJ, Oil Platforms (n 36), Separate Opinion of Judge Higgins, paras. 30–36, Separate Opinion of Judge Owada, paras. 41–52, and Separate Opinion of Judge Buergenthal, para. 41; see generally, Jules Lobel, ‘Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan’, Yale Journal of International Law 24 (1999), 537–557, 547. James A. Green, ‘Fluctuating Evidentiary Standards for Self-defence in the International Court of Justice’, International and Comparative Law Quarterly 58 (2009), 163–179, 172–174 (the analysis proceeds to criticize the ICJ, DRC v. Uganda (n 56) judgment for having fluctuated between various standards, 174–178).

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information about cabinet deliberations in general, and those regarding the issue at hand in particular, hidden from the public eye for many years.59 Foreign relations concerns are often cited as the reason for this, but their balancing with the public’s right to know is clearly different from that relative to wartime security concerns. Delayed disclosure is necessary for the carrying out of meaningful investigation. It also has an important role in encouraging compliance with ius ad bellum requirements:60 decision-makers who have reason to believe that full disclosure of their decision-making processes before the war awaits them after it, are likely to act cautiously. It is thus necessary to reverse the presumption in favour of prolonged secrecy and apply the presumption in favour of transparency once the operational necessity for secrecy has been satisfied.

3.3.3 Deconstructing Secrets A secret is not a seamless cloth. It is often possible to maintain some level of secrecy as to the content of information while revealing the existence of some other kind of information on the matter. Denying the existence of any matter on which information may be available would be considered a ‘deep’ secret.61 Offering some information on the existence of the matter while denying substantial information would be considered a ‘shallow secret’. The former may be justified, but quite rarely. The non-disclosure by the CIA of any information concerning the reliability of ‘Curveball’ illustrates the point. Let us assume that for some legitimate operational reason, the CIA concluded that no one outside the organization could be exposed to the raw material that created suspicion towards ‘Curveball’, and therefore chose not to share it with its State department’s counterparts. It could still have informed the latter (at the time headed by a former Chairman of the Joint Chiefs of Staff) that it was receiving some information that raised concerns regarding his reliability. 59

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Israel has recently extended the classification period of confidential security-related information to seventy years, thus keeping away from the public eye information about the foundation of the State and the 1948 war. The Israel State Archivist admitted that some of the material was selected to remain classified because ‘it has implications over [Israel’s] adherence to international law’. Barak Ravid, ‘State Archives to Stay Classified for 20 Years More, PM Instructs’, 28 July 2010, available at: www.haaretz.com. Charney, ‘Use of Force’ 2001 (n 35), 836. The term was first coined in Kin L. Scheppele, Legal Secrets: Equality and Efficiency in the Common Law (University of Chicago Press, 1988), 21–22, 75–79 and 84–85; it was applied in public law in David E. Pozen, ‘Deep Secrecy’, Stanford Law Review 62 (2010), 257–339.

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Several criteria may determine the level of depth a secret requires.62 These may include the number of people who know it; the extent of the information conveyed to ‘people in the know’; the latter’s institutional position (i.e. are they likely to practice critical scrutiny?); and the timing of their exposure to the information (i.e. in real time or post factum?). These criteria, in turn, point to the possibility of mitigating the risks inherent in a culture of secrecy by establishing oversight mechanisms.

3.3.4

Oversight Mechanisms and Information-sharing Regimes Domestically, thinking of secrets in terms of levels or shades may well result in the sharing of more information with, at least, representatives of the people, such as members of relevant parliamentary committees.63 The issues over which oversight is exercised normally include budget; responsiveness to policy needs; quality of analysis; operational control; and propriety of activities. These oversight mechanisms disclose a simple truth: ensuring that intelligence agencies focus on the right problems and develop the right tools to gather and analyse information that provides an adequate basis for policy choices, requires that information be shared with relevant people. Internationally, there are various models which require informationsharing, yet remain sensitive to secrecy concerns. The Security Council, whether it is called to assess evidence substantiating the use of force in self-defence or to consider and, at times, implement a collective security action, is such an institution. The institutional nexus between the Security Council and the International Atomic Energy Agency (IAEA) provides an interesting model for information-sharing relative to the Treaty on the Non-proliferation of Nuclear Weapons (NPT).64 The NPT relies on information-collecting and -sharing as one of its main mechanisms, consisting mainly of the IAEA verification and inspection activities. Such activities are taken pursuant to the conclusion of agreements between the IAEA and each non-nuclear State party to the NPT for the application of safeguards to all nuclear material. Their aim 62 63

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Ibid., 268–275. Parliaments in most democracies have committees devoted to intelligence oversight. The US model is considered to give the legislative branch the most extensive oversight responsibilities. See, Mark M. Lowenthal, Intelligence: From Secrets to Policy (Washington DC: CQ Press, 3rd edn, 2006), especially 191. Treaty on the Non-proliferation of Nuclear Weapons, 1 July 1968, 729 UNTS 161. Iran is a party to the treaty.

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according to article III of the treaty is to prevent diversion of such material to nuclear weapons or other explosive nuclear devices.65 Pursuant to an agreement governing the relationship between the UN and the IAEA, the latter is to report to the General Assembly and the Security Council on any case of non-compliance.66 Article IX further states that: ‘[t]he Agency shall co-operate with the Security Council by furnishing to it at its request such information and assistance as may be required in the exercise of its responsibility for the maintenance or restoration of international peace and security’ (emphasis added). This regime thus establishes a process for collecting information and making it public as a prerequisite to any decision on the use of collective force by the UN. This indeed is the de facto result of the submission of the IAEA reports to all members of the Security Council. The report titled ‘Implementation of the NPT Safeguards Agreement and relevant provisions of Security Council resolutions in the Islamic Republic of Iran’67 published on 8 November 2011 by the IAEA Director-General exemplifies the benefits of such a regime. Annex A of the report details the information, inclusive of an assessment of its reliability, upon which the conclusion that ‘the agency has serious concerns regarding possible military dimensions to Iran’s nuclear programme’ was based.68 The report stirred a lively international debate both in the Security Council and in the media, on the appropriate paths to follow to prevent Iran from developing nuclear weapons.69 At present, this is the only official and elaborated information available for public assessment of the necessity of a possible military action in this most explosive region. Granted, the public has no information to assess the feasibility of operational possibilities. It does not, however, follow that the information provided is useless: first, if later reports bridge the gap between ‘serious concerns’ and conclude with certainty that Iran intends to develop nuclear weapons, those who push against military action 65 66

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Ibid., arts. III, VII, XII(A)(6) and XII(B). UNGA, Agreement Governing the Relationship between the United Nations and the International Atomic Energy Agency, A/RES/1145 (XII), 14 November 1957, annex, art. III. IAEA, Board of Governors, Implementation of the NPT Safeguards Agreement and Relevant Provisions of Security Council Resolutions in the Islamic Republic of Iran, GOV/2011/65, 8 November 2011. Ibid., 10. In continuation to UNSC, Resolution 1737 (2006), S/RES/1737 (2006), 27 December 2006; UNSC, Resolution 1803 (2008), S/RES/1803 (2008), 3 March 2008; and UNSC, Resolution 1929 (2010), S/RES/1929 (2010), 9 June 2010.

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would have to shoulder the burden of substantiating their position (and vice versa). Second, the report shows that much and rather detailed information can be shared with the public at large in the course of reaching a decision on military action, without disclosing sensitive information on specific intelligence sources (‘shallow secrecy’). Thus, the mechanism allows for considering both the lawfulness of the use of force and public sensibilities and apprehensions in a manner more responsible and responsive than would have been otherwise feasible. The discussion suggests that the success of the national security discourse in equating secrecy with security may well amount to a Pyrrhic victory. Tellingly, one of the major conclusions of the national commission investigating the 9/11 attacks on the US, was that die-hard ColdWar concepts of secrecy were one of the main reasons for the failure to identify in due time the imminent threat posed by al-Qaeda. In its recommendations, under chapter 13.3 titled ‘Unity of Effort in Sharing Information’, the commission assessed the prevailing national security discourse in the following terms:70 Such a system implicitly assumes that the risk of inadvertent disclosure outweighs the benefits of wider sharing (. . .) The culture of agencies feeling they own the information they gathered at taxpayer expense must be replaced by a culture in which the agencies instead feel they have a duty to the information – to repay the taxpayers’ investment by making that information available.

It is worthwhile to anticipate the cost, not merely the value, of secrecy before it is to be paid. It is secrecy that may generate risk and transparency that may augment security, in the process advancing the objectives of both democratic processes and the ius ad bellum.

4. The Secret Taxonomy of ‘Military Necessity’: Implicating the ius in bello 4.1

The Normative Framework: Torn between Military Necessity and Transparency

The ius in bello, currently referred to as IHL, is born traumatically and leads a precarious, even paradoxical life: its very coming into play attests 70

National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks upon the United States (Washington DC: Government Printing Office, 2004), 417.

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to a failure to resolve a dispute peacefully. This failure, in turn, generates the suspension of the normal course of international life in favour of a brutish and nasty, though not necessarily short, exception, the dire consequences of which it seeks to mitigate. IHL does so, essentially, by providing that the conduct of war which the parties find militarily necessary incorporates humanitarian concerns. From the perspective of the warring parties, alas, said concerns for an enemy are often counter-intuitive. This is a fortiori the case in an era of asymmetrical wars and long-distance, arguably risk-free, fighting for the technologically advanced party, circumstances likely to augment reciprocal dehumanization.71 Within this frame, transparency assumes a crucial importance for advancing the humanitarian objectives of IHL and alleviating its ‘enforcement deficit’: free access to and flow of information regarding the conduct of hostilities are likely to encourage precaution on the part of political and military leadership; bring violations to an end quicker than would have been feasible otherwise; and generate a heightened awareness of accountability. If transparency derives from and advances the humanitarian aspect of IHL, military necessity often requires secrecy. It does not follow that the mere co-existence of the two antithetical requirements within IHL automatically entails a balancing formula. Indeed, the taxonomy of ‘military necessity’ excludes the following three categories of information from the balancing game: (1) Information that may be lawfully concealed: concealment and even misinformation are acceptable cornerstones of war tactics. Thus, article 24 of the 1907 Hague Regulations and article 37 of AP I stipulate that ‘ruses of war are not prohibited’. It follows that there is no need to balance secrecy with transparency to the extent that secrecy supports one of the ruses of war, that is, plays a specific role in war tactics and provided that the latter are neither perfidious nor otherwise in violation of IHL. (2) Information that it is not militarily necessary to conceal: if it is not militarily necessary to conceal information, then its mere relation to the conduct of hostilities cannot justify deviation from the general rule of the free flow of information, as secured in international human rights law72 and the constitutional law of nearly all 71

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See generally, Peter W. Singer, Wired for War: The Robotics Revolution and Conflict in the 21st Century (New York: Penguin Press, 2009). See (n 2).

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democratic countries.73 The public right to know need not be balanced with a non-existent military necessity. The test to determine the justification for concealment required in view of military necessity should consist of the following cumulative conditions: (a) it is required primarily for some operational purpose; (b) it is required exclusively for the attainment of that purpose; and (c) it serves a lawful purpose.74 (3) Information that is explicitly to be disclosed: in some instances, IHL requires proactive disclosure of information in a manner that at the very least assigns the burden of proof explicitly to the party claiming that secrecy is militarily necessary. Article 57(2) of the AP I, which states: ‘with respect to attacks, the following precautions shall be taken: (. . .) (c) effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit’, is such an instance. In all other circumstances, it is necessary to balance transparency and secrecy. This very requirement indicates that there can be no blanket secrecy covering all military operations in a certain conflict. Beyond this truism, however, IHL generally falls short of providing a satisfactory balancing formula. Thus, its rules decree that military necessity justifies deviation from humanitarian principles of varying degrees of value: the weight of the obligation to take all possible measures to avoid inflicting damage and suffering on civilians,75 is surely not equal to that of the prohibition on the destruction or seizure of enemy property,76 which in its turn is not equal to the duty to protect cultural property.77 Each of these obligations, however, is to be balanced with military necessity. Clearly, said balance need not be the same in all of these instances. The different weight on the humanitarian scales can and should be balanced by different levels of military necessity. This observation generates the conclusion that secrecy enjoys no a priori justification; it is 73 74

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See (n 5). This reflects to some extent criteria offered in scholarly debate on the notion of ‘military necessity’: see e.g. Hilary McCoubrey, ‘The Nature of the Modern Doctrine of Military Necessity’, Military Law and Law of War Review 30 (1991), 215–252, 238. AP I, 1977 (n 3), art. 57. Convention (IV) Respecting the Laws and Customs of War on Land, 18 October 1907, 205 CTS 277, annex: Regulations Concerning the Laws and Customs of War on Land, art. 23(g). Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, 249 UNTS 240, art. 4.

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case-sensitive: each decision to conceal information has to be justified (a) in the light of specific circumstances; and (b) in terms of the existence of ‘military necessity’, as detailed above. ‘Military necessity’, alas, much like its parent, ‘national security’, has proved to be a concept governments prefer to clothe, not to strip. The open, albeit denied, secret of military necessity/national security is that the secrets they purport to justify habitually exceed the information it is normatively permissible to withhold. The following section substantiates this point.

4.2

The Praxis: Military Necessity and the Fabrication of the Emperor’s New Clothes

Far from limiting the withholding of information to secrets required for reasons of military necessity, governments habitually keep secrets, disseminate disinformation or plainly lie for quite different reasons. Indeed, the temptation to reverse the relationship between the rule and the exception is hardest to resist when the political stakes are high, and easiest to execute in times of popular angst. Three main motives typically propel the withholding of information which has no bearing on military necessity. The first relates to perceived political necessity; the second to the wish to suppress knowledge about debatable policies; and the third to the desire to conceal unlawful, indeed criminal, conduct.

4.2.1 Political Necessity Political and military leaders are invested in war more than in anything else they have done in their public life. This is understandable: they will forever be remembered and judged by the outcome of that war. Leaders thus become personally engaged in making wartime decisions, an engagement that may impede rational choices. The clearest case of political necessity occurs when the choice made actually turns out to be perceived by the public as jeopardizing the national interest. A more nuanced, and probably more common, case of political necessity occurs when the leadership is convinced that the war serves the national interest, but feels a need to conceal its cost. Indeed, ‘it is easy, operating behind the curtain of secrecy, to conceal setbacks and pronounce progress’.78 The tellingly memorable exception of Winston Churchill’s 78

Ted Gup, ‘Secrecy and the Press in Time of War’, Nieman Reports 55(4) (2001), 11–13.

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promise of blood and toil underscores the observation that wartime leadership rarely misses an opportunity to do so. When the target audience is perceived by its leaders as especially gullible, such concealment approximates to the theatre of the absurd. The appearance of the Iraqi Information Minister, Muhammad Said AlSahaf, telling reporters that ‘Iraqi forces are destroying American units all over the country’, when such forces were eleven miles away from Baghdad,79 is a good example. Democracies find it necessary to resort to subtler political efforts in order to suppress and manipulate information. The daily press briefings of military correspondents held in Saigon during the Vietnam War, (in)famously known as ‘the Five O’clock Follies’, are illustrative: in an attempt to limit public opposition to the decision to continue the war, the briefings commonly exaggerated the numbers of Vietcong casualties and played down the number of civilian casualties.80 Similarly, when Robert McNamara, Defense Secretary during the Vietnam War, was on his way back from a field visit in 1971, he shared with his staff his assessment that ‘things were getting worse’. Once his plane had landed in the US, he told the press that ‘military progress in the past twelve months has exceeded our expectations’.81 Concealment of the truth was deemed necessary to prevent waning public support for the war from dwindling further. A perceived political necessity to curb opposition to war similarly led both the Bush administrations during the 1991 and the 2003 Gulf wars to ban the publication of photographs of soldiers’ remains returning from the war zone to the Dover air force base.82 The official reason for the ban was the protection of the privacy of the fallen and their loved ones. Scepticism regarding the veracity of this statement is warranted by the fact that the concealed photos were of flag-draped coffins with no

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John M. Broder/Erich Schmidt, ‘A Nation at War: The Plan: US Attacks on Holdouts Dealt Iraqis Final Blow’, 13 April 2003, available at: www.nytimes.com. Robert Zelnick, ‘The Press and National Security: Military Secrets and First Amendment Values’, Journal of National Security Law 1 (1997), 21–46, 31. Ironically, ‘the follies’ which were used to manipulate public opinion were part of an operation named ‘Maximum Candor’ (see Martin J. Manning/Clarence R. Wyatt, Encyclopedia of Media and Propaganda in Wartime America, vol. 2 (Santa Barbara: ABC-CLIO, 2010), 606). The story is told, followed by the original press conference clip, in the documentary film The Most Dangerous Man in America (Judith Ehrlich/Rick Goldsmith, directors, 2009). This policy was challenged, but upheld in the US Court of Appeals, JB Picture v. Department of Defense, Decision of 18 June 1996, 86 F 3d 236 (DC Cir. 1996).

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identifying marks, and that the policy was applied inconsistently. The policy was overturned by President Barack Obama in 2009.83 A more sophisticated method was used in the secret ‘Pentagon Military Analysts Program’ launched in the context of justifying the Global War on Terror: it consisted of rounding up a select group of retired generals, many with business interests in the Pentagon; giving them exclusive access to confidential documents; and then providing them with talking points they were to reiterate in their ‘objective’ analysis. Said information was not disclosed to analysts unwilling to subject themselves to such manipulation.84 Following two years of a judicial battle, and only pursuant to a threat from the district judge ‘to bring Pentagon officials into court “to explain the delay and why they shouldn’t be held in contempt”’, the Pentagon provided the 8,000 documents describing the working of this ‘message force multipliers’ scheme.85

4.2.2 Obfuscating Debate over Dubious Policies The wish to suppress public debate over certain policies underlying tactical moves of questionable military necessity is another common reason for hiding behind obfuscating debate. The internal guidelines governing the Israeli closure of the Gaza Strip, and relating specifically to the formula by which Israel defines the ‘minimal caloric requirement’ of the population to determine which produce would be allowed access to the Strip, provides a telling example: a request submitted under the Israeli freedom of information law to disclose the formula was refused by the military.86 Pursuant to a petition by ‘Gisha’, a human rights group,87 and ensuing pressure from the TelAviv administrative court, led to the disclosure of parts of the documents comprising the guidelines.88 The irony behind claiming secrecy in such a 83

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In the context of a court challenge, after the previous administration was forced, by the courts, to compromise on that policy. See, National Security Archive, ‘Return of the Fallen’, 28 April 2005, available at: www.gwu.edu. The programme became known to the public through a Pulitzer Prize-winning New York Times article that began with David Barstow, ‘Message Machine: Behind TV Analysts, Pentagon’s Hidden Hand’, New York Times (20 April 2008), A1. Clark Hoyt, ‘Information that Doesn’t Come Freely’, 11 March 2008, available at: www. nytimes.com. Israel, Freedom of information Law, 19 May 1998, 5758–1998. Israel Ministry of Defense, Answer to Administrative Petition 2744/09 Gisha v. Ministry of Defense, 13 October 2010. For an unofficial translation of the document released, see www.gisha.org.

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case is palpable: the enemy (in this case, its civilian population) is all too aware of the products of which they are deprived. It is the Israeli and the international public that is kept in the dark under the guise of military necessity: technical details pertaining to a dubious policy and the reality it creates are necessary for an informed debate over the policy. Concealing this information does not serve a military purpose; rather, the guise of ‘military necessity/national security’ is misused to create both a democratic and a humanitarian deficit. Targeted killings by drone attacks provide yet another pertinent example of secrecy employed, inter alia, to shield a contested policy from any meaningful debate.89 The US admits to carrying out such a policy and has publicly laid out its views on its lawfulness.90 The details of the policy and its implementation in specific attacks are, however, kept secret. Neither the CIA nor the army takes responsibility for any such attack. The net result is twofold: the suppression of a meaningful public debate and the avoidance of accountability. While the establishment (executive, military and intelligence) allows for a theoretical discussion and even willingly partakes in it, it simultaneously suppresses a consequential debate. The latter requires information as to the specifics of the policy, for instance, the criteria used to decide on the identity of the target; safeguards implemented to prevent mistakes, and their effectiveness; the agencies and individuals in charge of the operations; and, most importantly, the actual impact of the operations (numbers of noncombatants or combatants who were not the target of the operation who were consequently killed).91 The concealment of this information generates the second result, because without this data it is impossible to assess the legality of the action, for instance to determine its proportionality. In this manner, ‘military necessity’, sanctioned by IHL, is used subversively to prevent the application of the very body of law of which it is part, producing both a democratic and an enforcement deficit. Indeed the coupling of automated and increasingly autonomous technology 89

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On this controversy, see e.g. Mary E. O’Connell, ‘Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004–2009’, in Simon Bronitt (ed.), Shooting to Kill: The Law Governing Lethal Force in Context (forthcoming) (arguing against the legality of the use of drones); Amos Guiora, ‘Targeted Killing as Active Self-defense’, Case Western Reserve Journal of International Law 36 (2004), 319–334, 334 (supporting the legality of the use of drones for targeted killings). Harold Hongju Koh, ‘The Obama Administration and International Law’, 25 March 2010, available at: www.state.gov. Philip Alston, ‘The CIA and Target Killings Beyond Borders’, Harvard National Security Journal 2 (2011), 283–446.

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with secrecy may create another transparency concern that augments the enforcement deficit of IHL: a sense of invincibility coupled with invisibility is a lethal combination, generating diminished moral inhibitions, fewer witnesses, and reduced means to establish accountability.

4.2.3 Concealing War Crimes Nowhere is the gap between the normative and the combative worlds more acute than in cases where secrecy is misused by perpetrators to prevent access to information on war crimes. Indeed, concealing this information is irresistibly tempting: the price seems low; the victim is usually perceived as an enemy (a category more powerful than ‘a combatant’), whose loss is not likely to be mourned by the perpetrators’ own nationals; the crime often takes place in a remote or otherwise isolated environment; and the chances it will be revealed may be low. The gains are high: a whole chain of command may avoid embarrassment and eventual accountability; and domestic investigation authorities, the first line enforcement of IHL, are hardly keen on holding accountable their fellow nationals for crimes allegedly committed on behalf of the nation and for its security.92 It is thus hardly surprising that one can discern a recurring pattern of governmental attempts to use national security arguments to conceal information, or at least minimize media coverage of war crimes. The sorry story of the photos documenting human rights abuses of detainees in Abu Ghraib illustrates the point: in February 2004, the US military concluded its investigation of allegations of detainees’ abuse in Abu-Ghraib.93 It never released the investigation report. The substantive behaviour in question became public knowledge when some of the 300 photos obtained by investigators were leaked to the CBS news network some months later. Even then the government refused a freedom of information request submitted by the American Civil Liberties Union to publish the photos in its possession (which included depictions of detainees’ abuse in other US-controlled prisons as well).94 92

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The Israeli NGO Yesh Din reports that 96.5% of complaints in regard to offences by Israeli soldiers against Palestinians are closed without indictments being filed. See Michael Sfard (ed.), Alleged Investigation: The Failure of Investigations into Offenses Committed by IDF Soldiers against Palestinians (Tel-Aviv: Yesh Din, 2011). CBS News, ‘Abu Ghraib Timeline’, 18 February 2005, available at: www.cbc.ca. US District Court for the Southern District of New York, American Civil Liberties Union v. Department of Defense, Supplemental Order of 21 June 2006, 2006 WL 1722574 (SDNY).

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The government first cited the privacy of the detainees and prisoners as the reason for its refusal. When the American Civil Liberties Union agreed that the photos be redacted to prevent identification of individuals, the argument changed: concealment was required to prevent incitement against Americans that may result from the publication.95 Following judicial orders to release the photos,96 Congress passed a bill designed to prevent disclosure of any documentation relative to the treatment of detainees, including the photos.97 One may argue that the motivation behind such concealment is the protection of American interest and the alleviation of anti-American sentiments. The same argument could equally be made with respect to images of police brutality. There is nothing in such photos to make their concealment a ‘military necessity’ in the sense that their disclosure would in any way hamper military efforts. Indeed, while the negative outcomes of disclosure are hypothetical, the consequences of concealment are less so: it would minimize (failing elimination) media coverage and hence public scrutiny of misconduct, thereby easing domestic and international pressure to hold perpetrators of crimes accountable. Confusing the substantive behaviour with its disclosure as a reason for anti-American sentiments is thus compounded with a message of impunity.98 Secrecy is used to sacrifice the rule of law at the altar of raison d’e´tat. It is little wonder that eventually such secrecy requires not only the corruption but also the concealment of law itself.

4.3

Bedevilled Advocates and the Concealment of Law

Legal advisers to government and the military ostensibly render legal opinions. In effect, their reading of the law, to the extent that it provides a basis for guidelines for permissible conduct, constitutes the applicable law. The expansion of secrecy to shield such opinions from public scrutiny brings the reversal of the relationship between the norm and 95

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See Jay A. Yaogda, ‘Seeing is Believing: The Detainees Abuse Photo and “Open” Government’s Enduring Resistance to their Release during an Age of Terror’, University of Florida Journal of Law and Public Policy 21 (2010), 273–306. US Court of Appeals, American Civil Liberties Union v. Department of Defense, Decision of 22 September 2008, 543 F 3d 59 (2nd Cir. 2008). US, Protected National Security Documents Act of 2009, 28 October 2009, 123 STAT 2184, 5 USC 552 note, paras. (c)(1)–(d)(1). The US army did press charges against several of those involved. See Christopher Graveline/Michael Clemens, The Secrets of Abu Ghraib: American Soldiers on Trial (Washington DC: Potomac Books, 2010), 305–309.

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the exception to its logical conclusion: the terminus of the rule of law. The ‘torture memos’ provide a quintessential example. ‘The torture memos’ comprise memoranda prepared in the US Department of Justice Office of the Legal Counsel to the President, setting the legal framework for torturous interrogation techniques applied by CIA agents against detainees suspected of terrorism in the context of the Global War on Terror. They were kept secret, until disclosed following a, well, torturously arduous legal campaign.99 Given the international legal standing on torture, it is clear that they presented a corrupt reading of the law.100 In attempting to justify the secrecy of the memos, the government made a national security argument that disclosure ‘confirming the existence of these documents would acknowledge a CIA intelligence interest in detainee interrogation and detention activities (. . .) and would further acknowledge a CIA capability to pursue such intelligence activities and employ such methods’.101 Given that the detainees are the first to know of these ‘capabilities’ and that those released are likely to share their knowledge with others, the ‘national security’ argument lacks force, a point underscored by the decision of the Obama administration, following consultation with the Director of National Intelligence, to disclose the memos that were not hitherto released.102

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The campaign included two FOIA requests that were denied. For documents released following the 2004 campaign, see Karen J. Greenber/Joshua L. Deatel, The Torture Papers: The Road to Abu Ghraib (New York: Cambridge University Press, 2005). For the 2009 campaign and the memos published consequently, see American Civil Liberties Union, ‘Accountability for Torture: The Bush Administration Secret OLC Memos’, 24 August 2009, available at: www.aclu.org. Anthony Lewis, ‘Making Torture Legal’, Washington Post (17 June 2004): ‘[t]he memos read like the advice of a mob lawyer to a mafia don on how to skirt the law and stay out of prison’. For a broader analysis of the role of legal advisers in the Bush administration, see Harold H. Bruff, Bad Advice: Bush’s Lawyers in the War on Terror (Lawrence: University Press of Kansas, 2009); Greenber/Deatel, The Torture Papers 2005 (n 99); Stjepan G. Mestrovic, The Trials of Abu Ghraib: An Expert Witness Account of Shame and Honor (Boulder: Paradigm, 2007); Philippe Sands, Torture Team: Deception, Cruelty and the Compromise of Law (London: Allen Lane, 2008); Peter J. Honigsberg, Our Nation Unhinged: The Human Consequence of the War on Terror (Berkeley: University of California Press, 2009). US District Court for the Southern District of New York, American Civil Liberties Union v. Department of Defense, Fourth Declaration of Marilyn A. Dorn of 30 March 2005, 04 Civ. 4151 (AKH), para. 11. The White House: President Barack Obama, ‘Statement of President Barack Obama on Release of OLC Memos’, 16 April 2009, available at: www.whitehouse.gov. In his

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When this argument was dismissed in court, the government raised a narrower security argument, under a different exemption in the FOIA, protecting from disclosure law enforcement information to the extent that its release ‘could reasonably be expected to endanger the life or physical safety of any individual’.103 The American Civil Liberties Union noted in its response that never has this exemption been applied to allow shielding executors of illegal and immoral acts from publicity.104 The court’s conclusion speaks for itself:105 ‘[i]f the documents are more of an embarrassment than a secret, the public should know of our government’s treatment of individuals captured and held abroad. History and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse’.

4.4

Normative Containment of the Excess of Secrecy

The underlying assumption of IHL is that it is desirable and feasible to regulate ‘the technical limits at which the necessities of war ought to yield to the requirements of humanity’.106 In an effort to realize this precarious balance, both legal provisions and judicial holdings have attempted, with varying degrees of success, to strip the concept of ‘military necessity’ of excess baggage and make it less amenable to expansive interpretations.107 This effort comes to naught when ‘military necessity’,

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statement President Obama also implied that none of those in charge should fear charges pressed against them over the published materials. 5 USC § 552(b)(7)(F). US District Court for the Southern District of New York, American Civil Liberties Union v. Department of Defense (n 101). US District Court for the Southern District of New York, American Civil Liberties Union v. Department of Defense, Opinion and Order of 15 September 2004, 339 F Supp 2d 501. Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grams Weight, 29 November–11 December 1868, 138 CTS 297. The abstract definition of ‘military objectives’ in AP I, 1977 (n 3), art. 52(2) provides a good example of the difficulty of containing such concepts with precision. See Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (New York: Cambridge University Press, 2nd edn, 2010), 89–91. Judicial rulings have often determined that a certain action was not warranted by military necessity, see e.g. ICTY, Prosecutor v. Dario Kordic and Mario Cerkez, Judgment of 17 December 2004, Case No. IT-95–14/2-A, paras. 484–485 and 583–586; ICTY, Prosecutor v. Tihomir Blaskic, Judgment of 3 March 2000, Case No. IT-95–14-T, paras. 543–544, 549–550, 556–557 and 559 (holding that damage restricted to Muslim property was motivated by ethnic considerations, not by military necessity) but are yet to generate a more concrete definition, rather than referring back to the definition of ‘military objectives’, thereby

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far from being reduced to technical requirements, is hijacked by extraneous considerations which remain secret. The net result is a war (which at present knows no spatial and temporal limitations) which does not ‘yield to the requirements of humanity’ and sacrifices the rule of law at the altar of raison d’e´tat. The reversal of the presumption in favour of secrecy coupled with strong accountability mechanisms may go some way to contain this danger. The success of the latter, alas, is equally jeopardized by secrecy. This is substantiated in the following part.

5. If Truth Be Told: Implicating the ius post bellum 5.1

The Normative Framework: After the Fact

The ius post bellum attempts to rectify the ius ad bellum and the ius in bello recurrent failure to ensure that a war is lawfully launched and/or conducted. It is based, inter alia, on the assumption that disclosure (of crimes related to any phase of a war) is a condition sine qua non for closure, and on the related assumption that accountability for crimes committed has a preventive effect. There are various methods to generate said disclosure. In the present part, the focus is on the judicial method and, more specifically, on the investigation of war crimes and on the emerging ‘right to truth’. Proper investigation requires facts. Those in possession of such facts often have, alas, little incentive to share them with external entities, let alone draw, or allow others to draw, normative conclusions therefrom. They would rather conceal them.108 It is thus not surprising that the dialectics of sovereignty and internationalization provide the paradigm for the development of international criminal investigation. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide109 and the 1949 Geneva Conventions were the first treaties of general applicability to internationalize the investigation of

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equating the two concepts and failing to render either concrete. See e.g. ICTY, Prosecutor v. Pavle Strugar, Judgment of 17 July 2008, Case No. IT-01–42-A, para. 330. Naomi Roht-Arriaza, ‘State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law’, California Law Review 78 (1990), 449–513; Antonio Cassese, ‘On the Current Trends Towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’, European Journal of International Law 9 (1998), 2–17, 5. Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277.

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war crimes. The latter include a provision requiring the parties to enact national legislation to allow for the prosecution and punishment of war criminals; search individual suspects; and prosecute or extradite them.110 The conventions, however, impose no proactive duty to investigate in order to uncover IHL violations. The AP I addressed this omission nearly thirty years later: article 87 obligates military commanders to inform ‘competent authorities’ of violations of the conventions, and to initiate ‘disciplinary and penal actions’ against those responsible for such violations. Article 90 went further and established the ‘International Humanitarian Fact-Finding Commission’, the first standing international body entrusted with the investigation of war crimes.111 Still, that body’s ability to carry out its mission is contingent on the cooperation of the parties, and their willingness to share relevant information. They are under no obligation to do so, and public disclosure of any findings equally depends on their consent. The commission envisaged under the AP I remained a paper entity. International institutions preferred to establish ad hoc factfinding commissions, at times vested with substantial powers and mandated to assess their factual findings in normative terms and recommend further steps to the institution which created them.112 They too suffer from States’ lack of cooperation in the disclosure of evidence. Indeed, even international tribunals encounter the problem of lack of ‘assistance on evidentiary matters’ from States concerned.113 The 1998 Rome Statute of the International Criminal Court also falls short of ensuring full disclosure of information: article 93(1) does provide that ‘States Parties shall (. . .) comply with requests to assist the court’ in matters such as production of evidence, questioning of people, 110

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Geneva Convention I, art. 49; Geneva Convention II, art. 50; Geneva Convention III, art. 129; Geneva Convention IV, art. 146. AP I, 1977 (n 3). E.g. the establishment by the Security Council of the fact-finding commission to investigate grave violations of human rights and IHL in Rwanda, UNSC, Resolution 935 (1994), S/RES/935 (1994), 1 July 1994, and in Darfur, UNSC, Resolution 1564 (2004), S/RES/1564 (2004), 18 September 2004; the establishment by the Human Rights Council of the fact-finding mission on operation ‘cast lead’ in Gaza, UNGA, Human Rights Council, Cuba, Egypt (on Behalf of the Arab and African Groups), Pakistan (on Behalf of the Organization of the Islamic Conference); Draft Resolution S-9/1: The Grave Violations of Human Rights in the Occupied Palestinian Territory, Particularly Due to the Recent Israeli Military Attacks against the Occupied Gaza Strip, A/HRC/S-9/ L.1, 12 January 2009. Cassese, ‘Criminal Prosecution and Punishment’ 1998 (n 108), 11.

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service of documents and the examination of sites.114 Such compliance, however, is not mandatory in all circumstances, as article 93(4) makes clear:115 ‘[i]n accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security’. The permission to deny access to information for reasons that relate to national security leaves the States parties with a significant margin of appreciation that may well mock the otherwise mandatory disclosure.116 The denial of a judicial request for information may amount, under certain circumstances, to a breach of the statute. Such breach, however, is not itself a punishable crime, and the court has no means to enforce a State party to share information which, in its view, is detrimental to its national security.117

5.2

Secret Facts and the Phantom of Accountability

The discussion above suggests that the ius post bellum practically invites States to wave the ‘national security’ card to undermine the very objectives the law was designed to advance. Insofar as international criminal trials are concerned, the Lubanga case is quite telling:118 following the ethnic conflict in the Democratic Republic of the Congo during the 1990s, the prevailing secrecy left very 114

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Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90. Emphases added to connote the inherent contradiction between the mandatory and the permissive language, a contradiction that becomes all the more apparent in light of additional provisions, as discussed. Emphasis added. Ibid., art. 72 focuses on the protection of information a State deems needs to be concealed in view of its national interest during the trial stage. Ibid., art. 93 (6) provides that ‘[i]f a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial’. Interestingly enough the progenitor of this provision was the ICTY. See ICTY, Prosecutor v. Tihomir Blaskić: Decision on the Objection of the Republic of Croatia to the Issuance of Subpoenae Duces Tecum, Decision of 18 July 1997, Case No. IT-95–14; ICTY (Appeals Chamber), Prosecutor v. Tihomir Blaskić: Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Judgment of 29 October 1997, Case No. IT-95–14. The one remedy available to the Court is informing the Security Council of a State’s failure to cooperate, and only when the matter was referred to the Court by the Security Council. See ICC, Negotiated Relationship Agreement between the International Criminal Court and the United Nations, ICC-ASP/3/Res.1, 7 September 2004; and the Rome Statute, 1998 (n 114), arts. 5(b) and 7. ICC, Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04–01/06.

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little information available to those hoping to investigate the atrocities committed. The International Criminal Court regime, as described above, left the prosecutor with no option but to use the power accorded to him in article 54(3) of the Statute and reach confidentiality agreements with relevant sources. Excessive reliance on such confidential information nearly brought about the release of Mr Lubanga Dyilo,119 as the Court found that the prosecutor had failed to provide the defence with significant amounts of evidence, obtained under article 54(3); that a fair trial has been rendered impossible as the prosecutor has resorted to this provision ‘routinely’ rather than ‘exceptionally’; and that as a result ‘a significant body of exculpatory evidence had not been disclosed to the accused, thereby improperly inhibiting the opportunities for the accused to prepare his defense’. Under this imminent threat, the prosecutor decided to make the information available to the defence, in yet another manifestation of the flexibility of secrecy arguments.120 The practice of secrecy has also trumped the work of international fact-finding commissions. Failed attempts to find the facts relative to the commission of war crimes in the context of the 2008 operation ‘Cast Lead’, launched by Israel in response to rocket attacks from the Gaza towards communities in southern Israel, underscore the point. The Fact-finding Mission on the Gaza Conflict (the Goldstone Committee), established in 2009 by the Human Rights Council,121 was asked to investigate violations of IHL and international human rights law committed during that operation. The Israeli government refused to cooperate with the committee; did not provide it with any documents; and ‘prevented it from meeting Israeli government officials, but also from travelling to Israel to meet with Israeli victims and to the West Bank to meet with Palestinian Authority representatives and Palestinian victims’.122 119

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Eventually the prosecutor agreed to disclose all relevant information in his possession. For a detailed account of events, see Kai Ambos, ‘Confidential Investigations (Article 54 (3)(E) ICC Statute) vs. Disclosure Obligations: The Lubanga Case and National Law’, New Criminal Law Review: An International and Interdisciplinary Journal 12 (2009), 543–568. ICC, Stay of Proceedings in the Lubanga Case Is Lifted – Trial Provisionally Scheduled for 26 January 2009, ICC-CPI-20081118-PR372, 18 November 2008. UNGA, Human Rights Council, Draft Resolution S-9/1 (n 112). For the Report, see UNGA, Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact-finding Mission on the Gaza Conflict, A/HRC/12/48, 15 September 2009 (Goldstone Report). HRC, Goldstone Report, 15 September 2009 (n 121), paras. 8 and 20.

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The Goldstone Report, published in September 2009, was highly critical of Israel, finding, inter alia, that Israel intentionally killed civilians in the course of the operation. A subsequent committee created by the UN Human Rights Council (UNHRC) to monitor proceedings undertaken by the parties following the Goldstone Report, found reason to question these conclusions.123 Judge Goldstone embraced the latter committee’s finding, and explained (away) the differences in Israel’s refusal to cooperate with his committee, a refusal that left it with ‘no evidence on which to draw any other reasonable conclusion’ and thus unable ‘to corroborate how many Gazans killed were civilians and how many were combatants’.124 In effect, Israel refused to cooperate with both committees, thus crippling both reports and preventing a well-founded account of the number of civilians killed during the hostilities. The Israel defence forces reported that according to its information sources, some 600 combatants, 309 civilians and 320 ‘unidentified’, were killed.125 The Israeli human rights organization, B’tselem, carried out its own investigation and reached very different numbers, alleging that no less than 764 of those killed were civilians.126 A freedom of information request filed by B’tselem with the Israel defence forces and requesting the names and classification of those in the army’s list was refused. Having indicated initially that it may provide the names but not the classification, the Israel defence forces eventually supplied only names that appeared on its list which were obtained from public sources (mainly hospitals).127 Given that the deceased’s identities are known in Gaza, the secrecy surrounding their names is puzzling. Be that as it may, it is undisputed that secrecy prevented a reliable finding regarding the actual numbers of 123

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The Committee published its report on 21 September 2010 (UNGA, Human Rights Council, Report of the Committee of Independent Experts in International Humanitarian and Human Rights Laws to Monitor and Assess Any Domestic, Legal or Other Proceedings Undertaken by Both the Government of Israel and the Palestinian Side, in the Light of General Assembly Resolution 64/254, Including the Independence, Effectiveness, Genuineness of these Investigations and Their Conformity with International Standards, A/HRC/15/50, 21 September 2010). Richard Goldstone, ‘Reconsidering the Goldstone Report on Israel and War Crimes’, Washington Post (1 April 2011). Amos Harel, ‘IDF: 600 Hamas Men, and 309 Civilians Died in Gaza Offensive’, 25 March 2009, available at: www.haaretz.com. B’tselem, ‘Fatalities during Operation “Cast Lead”’, available at: http://old.btselem.org. Information was given to the authors directly by the individuals handling the case in ‘Gisha’ via email, which is filed.

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civilians killed during the hostilities, and ergo any reasoned conclusion on the proportionality of the killings.

5.3

The Right (Courses) to Truth

The ius ad bellum requires information to achieve its objectives: any international fact-finding effort, and subsequently any investigation of war crimes, must rely on information. Effective mechanisms to ensure that relevant information is not destroyed and is indeed collected, maintained and accessible are currently missing. The late Judge Antonio Cassese suggested mandating an automatic intervention of international fact-finding and monitoring groups from the outset of hostilities, whose reports will initially be confidential but which will become publicly available following the conclusion of the armed conflict.128 Clearly, the effective functioning of this mechanism requires setting limits on the ability of States to withhold information. An amplified ‘right to truth’ may also become an effective tool in this context.129 The UNHRC study on this right concluded as follows:130 The right to the truth about gross human rights violations and serious violations of human rights law is an inalienable and autonomous right, linked to the duty and obligation of the State to protect and guarantee human rights, to conduct effective investigations and to guarantee effective remedy and reparations. This right is closely linked with other rights and has both an individual and a societal dimension and should be considered as a non-derogable right and not be subject to limitations.

The International Committee of the Red Cross concluded that this right is a norm of customary international law applicable in both international and non-international armed conflict, according to which ‘each party to the conflict must take all feasible measures to account for persons reported missing as a result of armed conflict and must provide their family members with any information it has on their fate.131 128

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Antonio Cassese, ‘How to Ensure Increased Compliance with International Standards: Monitoring and Institutional Standards’, in Antonio Cassese (ed.), Realizing Utopia: International Law for the Twenty-first Century (Oxford University Press, 2012). See Yasmin Naqvi, ‘The Right to Truth in International Law: Fact or Fiction?’, International Review of the Red Cross 88 (2006), 245–273. United Nations, ECOSOC, Commission on Human Rights, Promotion and Protection of Human Rights: Study on the Right to Truth – Report of the Office of the United Nations High Commissioner for Human Rights, E/CN.4/2006/91, 8 February 2006. Geneva Academy of International Humanitarian Law and Human Rights, ‘Customary Rules of International Humanitarian Law Applicable in Armed Conflicts of a

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National jurisprudence,132 and to a lesser extent international jurisprudence,133 support the notion that disclosure of information on specific war crimes, and the fate of those affected by war, constitutes a human right to know the truth about events affecting their lives.134 The experts’ committee report on Gaza regarded this principle as based in international human rights law and found that failure to inform victims about investigations and their progress is a violation of human rights.135 Significantly, in the 2010 case of Lund v. Brazil,136 the Inter-American Court of Human Rights struck down a Brazilian amnesty law that prevented investigations into grave human rights violations by security forces during the military dictatorship period. The court ruled that:137 The State is responsible for the violation of the right to freedom of thought and expression enshrined in article 13 of the American Convention on Human Rights, in relation to articles 1(1), 8(1), and 25 of the same instrument, for the harm to the right to seek and receive information, as well as to the right to know the truth.

Given that the right to truth relates to gross violations of both IHL and international human rights law, it need not be balanced against military necessity and its denial on the basis of considerations related to national security should be limited to a minimum, requiring a strict standard of proof. The discussion suggests that the enforcement deficit in the ius post bellum may well be explained by the weakness its normative framework entertains

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Non-international Character: A Study by the International Committee of the Red Cross’, available at: www.adh-geneve.ch. Especially in Latin America, see e.g. the Constitutional Tribunal of Peru which concluded that the right to the truth is a concrete expression of the constitutional principles of human dignity, rule of law and a democratic form of government, Constitutional Tribunal of Peru, Piura vs. Genaro Villegas Namuche, Judgment of 18 March 2004, Case No. 2488–2002-HC/TC, para. 15. E.g. Human Rights Chamber for Bosnia and Herzegovina, The ‘Serbrenica Cases’: Selimovic et al. vs. The Republika Srpska, Decision on Admissibility and Merits delivered on 7 March 2003, CH/01/8365 et al., 173–202; IACtHR, Gomes Lund v. Brazil, Judgment of 24 November 2010, Series C No. 219. The European Court of Human Rights implicitly recognized the right to truth as right as part of the right to be free from torture or ill-treatment, the right to an effective remedy and the right to an effective investigation and to be informed of its results, see ECtHR, Tas v. Turkey, Judgment of 14 November 2000, Application No. 24396/94; ECtHR, Cyprus v. Turkey, Judgment of 10 May 2001, Application No. 25781/94; ECtHR, Kelly et al. v. The United Kingdom, Judgment of 4 May 2001, Application No. 30054/96. See Human Rights Chamber for Bosnia and Herzegovina, Serbrenica Cases (n 133), 173–202. HRC, Report of the Committee of Independent Experts, 2010 (n 123), para. 92. IACtHR, Lund v. Brazil (n 133). 137 Ibid., para. 325(6).

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towards secrecy in the name of national security. This weakness reflects a presumption in favour of a sovereign right to secrecy, even when disclosure is sought post bellum. Given that without disclosure there is no closure, the time has come for the legal regulation of war to face its moment of truth.

6. Concluding Thoughts Of course it’s a violation of international law, that’s why it’s a covert action.138

Secrets surrounding the decision to launch war and the way it is (and was) conducted lend a bitterly ironic twist to the notion of carrying a secret to the grave. The objectives of the international legal regulation of all phases of war may well be advanced from information on the following questions: (a) Is there a justification for a war? (b) Does its continuation serve a feasible purpose and present the only available option? (c) Is it conducted in a manner that is excessively harmful in relation to both the feasibility of achieving its ends and indeed bringing it to an end? Information is also required for the effective working of any monitoring and accountability mechanism. Yet, while the benefits of transparency have been recognized both domestically and internationally in most spheres of life, the international regulation of war has not paid it the attention it deserves. This omission, which forfeits the law’s purposes as it augments its enforcement deficit, is due to the power exerted by the national security discourse and reflects the age-old deference international law pays to sovereignty. The national security discourse has successfully equated secrecy with security and transparency with risk. Indeed, as was once critically observed by Israel’s Minister for the Intelligence Services: ‘when security stakes are high, the majority doesn’t want to know a thing’.139 This observation is supported by a 2010 poll showing that 82% of the Israeli public backs ‘stiff penalties’ for people who leak illegally obtained information exposing ‘immoral conduct’ by the defence establishment.140 It should not come as a surprise that national public and leadership would

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Al Gore, quoted in Richard A. Clarker, Against All Enemies: Inside America’s War on Terror (New York: Simon & Schuster, 2004), 144. Globes, ‘Dan Meridor: The Majority Doesn’t Want to Know a Thing’, 6 October 2010, available at: www.globes.co.il (in Hebrew); see also (n 8). Or Kashti, ‘Poll: Majority of Israel’s Jews Back Gag on Rights Groups’, 28 April 2010, available at: www.haaretz.com.

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prefer embarrassing and often criminalizing information to remain concealed. The turning of national heroes into international villains and ensuing deconstruction of a collective identity is not a welcome prospect. It is thus clear that the incorporation of a strong transparency norm is likely to encounter resistance. Current practice of evading existing norms requiring the disclosure of information underscores the point. This is but a reflection of an aspect of the well-known ‘democratic deficit’ of international criminal law.141 Overcoming popular resistance requires principled persistence.142 The first step in this journey requires, as is usually the case, a combined effort on behalf of scholars, human rights organizations and tribunals designed to disprove, discredit and reverse the mythical equation between transparency and risk: all too often it is secrecy that generates risk (to either the secret holder, the State’s nationals or the victims of its crimes) and information-sharing that may augment security. Ample experience with the ills and manipulation of secrecy underscores the point. It does not follow that there is no genuine value to secrecy in the decision to use force or in the manner in which operations are conducted, but it does follow that the time has come to acknowledge that the actual instances of a conflict between the requirement of secrecy relative to war and transparency are far less common than alleged. It further indicates that leaving the determination of the scope of secrecy required exclusively to States is tantamount to asking the cat to keep an eye on the canary. The ‘realists’ sneer at the notion that States would simply hand over to an international authority their sovereign prerogative to determine the scope of secrecy required for their security. Still, the institutionalization of international law indicates that history has a way to make the unconceivable quite real. The sovereign State/international society dialectics are subject to change over time. The process of change normally begins with the articulation of norms and proceeds with the creation of centralized bodies entrusted with the monitoring of compliance, and even the enforcement of the norms. The ills of

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See e.g. Anne Peters, ‘Dual Democracy’, in Jan Klabbers/Anne Peters/Geir Ilfstein (eds.), The Constitutionalization of International Law (Oxford University Press, 2009), 263–341. The project – and problems – of institutionalizing international criminal law is analogous. See e.g. Aaron Fichtelberg, ‘Democratic Legitimacy and the International Criminal Court’, Journal of International Criminal Law 4 (2006), 765–785, responding to Madeline Morris, ‘The Democratic Dilemma of the International Criminal Court’, Buffalo Criminal Law Review 5 (2002), 591–600.

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the enforcement deficit drive this process. Thus, the ills of two world wars, flying in the face of toothless commitments to renounce war as an instrument of national security, led to the establishment of the Security Council entrusted with power hitherto inconceivable from the perspective of sovereignty. Similarly, the articulation of grave breaches of IHL generated the requirement to either prosecute or extradite perpetrators of war crimes. The enforcement deficit of this, and other mechanisms, generated, in due course, the establishment of the International Criminal Court. A similar process is likely to be applicable to a normative requirement of transparency relative to war. Given the paucity of the transparency discourse relative to war, it is premature to offer a blueprint for the process. This contribution does not purport to do so. Its modest attempt is to place the need to develop this discourse on the international agenda. It is needed because the current discourse, dominated by secrecy in the name of national security, creates both a democratic and an enforcement deficit and, at times, mocks the rule of law both domestically and internationally. Thinking in terms of transparency, rather than secrecy, carries some initial implications that we noted: first, war secrecy is not tantamount to a religious vow of silence. Unlike the latter, it does not take place in the tranquillity of a monastery, and its effects are far from spiritual. Indeed, given its effects, the assumption favouring the superiority of secrecy should be reversed, requiring government officials to (a) shoulder the burden of proof to justify why secrecy is necessary on a case-by-case basis, so as to allow for a differentiation between legitimate and illegitimate secrecy, and (b) use the minimum secrecy necessary. When secrecy is unnecessary, amenable to being ‘shallowed’, or has lost whatever importance it may have had because time has passed, it should not override disclosure. Second, there is a need for a norm that renders excessive use of secrecy illegal; third, there is a need for a norm that articulates clear duties to disclose information, especially in relation to behaviour that may amount to a war crime; finally, thought should be given to the establishment or enhancement of supervisory mechanisms, ranging from the media, to automatic monitoring and fact-finding bodies, to courts. The development of a rich transparency discourse further requires attention to be paid to other issues we did not tackle in this contribution, ranging from censorship and the free access of the media to war zones143 143

See for example Matthew J. Jacobs, ‘Assessing the Constitutionality of Press Restrictions in the Persian Gulf War’, Stanford Law Review 44 (1992), 675–726; Elana Zeide, ‘In Bed with the Military: First Amendment Implications of Embedded Journalism’, New York

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to classification and declassification rules excessively protecting government confidentiality.144 Telling truth to power is a tall order. Demanding power to tell the truth is taller. Telling the lie of power, in this order, is the tallest. It is not uncommon for States to become parties to international treaties for a variety of reasons additional to, and occasionally other than, a commitment to apply their norms. Indeed, at times it is the enforcement deficit, often made possible by secrecy, that entices them to do so. Injecting transparency into the normative framework of war is, therefore, likely to be resisted and, in the short run, may well generate less compliance. The international legal project is, however, not for the short of breath.

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University Law Review 80 (2005), 1309–1343; Karen Sinai, ‘Shock and Awe: Does the First Amendment Protect a Media Right of Access to Military Operations?’, Cardozo Arts and Entertainment Law Journal 22 (2004), 179–216; Supreme Court of Israel sitting as the High Court of Justice, The Foreign Press Association v. GOC Southern Command, 2 January 2009, HCJ 9910/08 (renewing press restrictions during Israel’s ‘Cast Lead’ operation in Gaza, available at: www.adh-geneva.ch). See for example Daniel P. Moynihan, Report of the Commission on Protecting and Reducing Government Secrecy, Senate Document 105–2, 103rd Congress (Washington DC: Government Printing Office, 1997), ch. 3: Common Sense Declassification and Public Access.

PART VI International Peace and Security Law

14 Transparency in the Security Council antonios tzanakopoulos*

1. Institutional Design and the Evolution of Security Council Powers It is no secret (and almost an understatement) that the Security Council is rather opaque. Arguably, it was not meant to be transparent to begin with:1 the institutional design, beautifully – if controversially – rendered by Hans Kelsen in the early years of the Charter, without the benefit of subsequent organizational practice, testifies to this.2 The Security Council was established as an executive organ with limited membership and few obvious restraints on its powers, in order to fulfil effectively its primary responsibility, i.e. the maintenance of international peace and security.3 It was meant as a forum for negotiation between the victorious powers (and France), whose agreement – however achieved – along with that of a few, perhaps easily swayed, non-permanent members would result in decisive action for the maintenance of peace. At the same time, according to its (still) Provisional Rules of Procedure, the Security Council must normally meet in public, detailed

* Many thanks are due to Professors Andrea Bianchi, Anne Peters, Christian Tams, Dr Gleider Hernández, Dr Ilias Plakokefalos and the participants in the authors’ retreat in Thun in January 2012 for helpful comments on earlier drafts. The usual disclaimer applies. 1 This is even clearer in cases of organs operating under an explicit principle of confidentiality, such as for example the OSCE High Commissioner on National Minorities. See on this Anuscheh Farahat, ‘Regulating Minority Issues through Standard-setting and Mediation: The Case of the High Commissioner on National Minorities’, in Armin von Bogdandy et al. (eds.), The Exercise of Public Authority by International Institutions – Advancing International Institutional Law (Heidelberg: Springer, 2010), 343–374, 370–372. 2 Hans Kelsen, ‘Organization and Procedure of the Security Council of the United Nations’, Harvard Law Review 59 (1946), 1087–1121 generally, and 1116 specifically. 3 UN Charter, art. 24(1).

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records are to be kept and published, and even private meetings which the Council may decide to hold are to have an official record: no less than ten rules provide for the publicity of Council meetings and records.4 Indeed, the particular rule on the publicity of meetings had caused a vibrant debate in the first month of the Council’s life: diplomacy, after all, was supposed to be public.5 The UN Charter itself further provides in article 31 that a member State which is not represented in the Council may participate in Council meetings (without a vote) if the Council decides its interests are specially affected in the matter before the Council.6 This would require that Council meetings be duly publicized to allow member States who are not represented in the Council to request to participate.7 Article 32 transforms the faculty of the Council to invite States (even non-members of the Organization) to participate in meetings into an obligation, in those cases where the Council is considering a dispute to which the State in question is a party.8 These possibilities for participation of States without a seat on the Council, and of other entities, are elaborated on and extended in the Provisional Rules of Procedure.9 Further, the Security Council is under an obligation to submit an annual report to the General Assembly in accordance with articles 15(1) and 24(3) of the Charter, which the Assembly is supposed to consider. All these Charter provisions and the concomitant rules in the Provisional 4

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UN, Provisional Rules of Procedure of the Security Council, S/96/Rev.7, last revised 21 December 1982, rules 48–57. For a reason why the Rules of Procedure are still ‘provisional’, see (n 56) below. See Sydney D. Bailey/Sam Daws, The Procedure of the UN Security Council (Oxford: Clarendon Press, 3rd edn, 1998), 10; Jacques Leprette, ‘Article 30’, in Jean-Pierre Cot/ Alain Pellet (eds.), La Charte des Nations Unies – Commentaire Article par Article (Paris: Economica, 2nd edn, 1991), 543–547, 544; Susanne Wasum-Rainer/Ingrid Jahn-Koch, ‘Article 30’, in Bruno Simma et al. (eds.), The Charter of the United Nations – A Commentary, vol. 1 (Oxford University Press, 3rd edn, 2012), 1028–1049, MN 5. Cf. the obligation to register treaties with the UN in UN Charter art. 102, seen as a direct condemnation of secret diplomacy. See further Rudolf Dolzer/Charlotte Kreuter-Kirchhof, ‘Article 31’, in Simma et al. (eds.), Charter of the United Nations 2012 (n 5), 1050–1067, MN 22–24; and cf. UN, Provisional Rules of Procedure, 1982 (n 4), rule 37. Cf. Benedetto Conforti, ‘The Legal Effect of Non-compliance with Rules of Procedure in the UN General Assembly and Security Council’, American Journal of International Law 63 (1969), 479–489, 485. See further Rudolf Dolzer/Charlotte Kreuter-Kirchhof, ‘Article 32’, in Simma et al. (eds.), Charter of the United Nations 2012 (n 5), 1064–1067, MN 7; and cf. Bailey/ Daws, Procedure of the UN Security Council 1998 (n 5), 11. UN, Provisional Rules of Procedure, 1982 (n 4), rules 37–39.

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Rules of Procedure are obviously geared towards establishing some degree of transparency in Security Council proceedings.10 In part, the Council’s institutional design, and especially its primary responsibility to maintain and restore international peace and security, can thus be argued to point in one direction, but certain explicit provisions in the Charter and the Council’s Provisional Rules of Procedure clearly point in another. The only way one could expect this (apparent) contradiction to be resolved would be through the practice of the Organization. But publicity requirements, along with most other rules relating to the Council, were at best marginally relevant for the better part of the last half of the twentieth century. The Cold War quickly put the Security Council on ice, and during that time the organ’s output was borderline negligible in terms of its actual effect, as was the ‘supervisory’ function of the General Assembly.11 While it was not acting, the Security Council did serve us of course with some magnificent – and rather transparent, if inconsequential – deliberations, with shoes being banged on tables and the like.12 And yet the deliberations started getting increasingly private, informal, with no records being kept.13 While the transparency of the working methods of an organ that was not producing much in terms of decisions with actual impact was for that latter reason alone not particularly relevant one way or another, the thawing of the ice around the Council chamber, due to the end of the Cold War and the

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Even if transparency in the working methods of the Council needs to be improved, given its practice: cf. Dolzer/Kreuter-Kirchhof, ‘Article 31’ 2012 (n 6), MN 32–35. See Reinhard Hilger/Helmut Tichy/Philip Bittner, ‘Article 15’, in Simma et al. (eds.), Charter of the United Nations 2012 (n 5), 567–574, MN 8. See further Karel Wellens, ‘The Primary Model Rules of Accountability of International Organizations: The Principles and Rules Governing their Conduct of the Yardsticks for their Accountability’, in Niels M. Blokker/Henry G. Schermers (eds.), Proliferation of International Organizations – Legal Issues, Legal Aspects of International Organization 37 (The Hague: Kluwer Law International, 2001), 433–470, 451; Eric Suy, ‘The Role of the United Nations General Assembly’, in Hazel Fox (ed.), The Changing Constitution of the United Nations (London: British Institute of International and Comparative Law, 1997), 55–69, 68. There seems to be some confusion surrounding the shoe-banging incident, however. See William Taubman, ‘Did He Bang It? Nikita Khrushchev and the Shoe’, 26 July 2003, available at: www.nytimes.com. The practice of holding informal consultations was (and still is) to some limited extent mitigated by the issuance of statements by the President of the Council, which summarize the discussion. See Stefan Talmon, ‘The Statements by the President of the Security Council’, Chinese Journal of International Law 2 (2003), 419–466, 423–424 and 429–430. See further on informal consultations below.

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eventual demise of the Soviet Union and the ‘socialist’ bloc, saw the Security Council becoming more active and more secretive. Since 1990, the Security Council has used its extensive powers under Chapter VII of the UN Charter to impose binding obligations on member States in ways never envisaged at the time of the Charter’s drafting, or indeed at any time during the Council’s lethargic first halfcentury. There is no need to recount here the measures the Security Council has imposed, as these are well documented in the literature. Suffice it to state a few of its more innovative and controversial actions, such as its attempts to settle legal disputes between States by means of Chapter VII resolutions,14 its ‘treaty action’, which has effected changes in international treaties,15 its adoption of general, non-countryspecific and non-situation-specific measures having the character of legislation,16 the creation of international criminal courts,17 as well as quasi-judicial organs,18 the imposition of sanctions on entities other than States, increasingly on individuals,19 and so forth. These powers 14

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See UNSC, Resolution 687 (1991), S/RES/687 (1991), 3 April 1991, paras. 2–4, where the Council effectively decided that the boundary between Iraq and Kuwait should be demarcated in accordance with the 1963 ‘Agreed Minutes’, which however up to that point Iraq was refusing to accept as binding on it. See Jan Klabbers, ‘No More Shifting Lines? The Report of the Iraq-Kuwait Boundary Demarcation Commission’, International and Comparative Law Quarterly 43 (1994), 904–913, 905; as well as para. 16 of the same resolution, where the Council effectively determined (even if it said it merely ‘reaffirms’) Iraq’s international responsibility for the invasion of Kuwait. See in detail Stefan Talmon, ‘Security Council Treaty Action’, Revue helle´nique de droit international 62 (2009), 65–116 with further references. See e.g. UNSC, Resolution 1373 (2001), S/RES/1373 (2001), 28 September 2001; and UNSC, Resolution 1540 (2004), S/RES/1540 (2004), 28 April 2004. See further Stefan Talmon, ‘The Security Council as World Legislature’, American Journal of International Law 99 (2005), 175–193, among the abundant relevant literature. See briefly Antonios Tzanakopoulos, ‘Chapter VII Measures (UN Charter) (with Regard to International Tribunals)’, in Antonio Cassese (ed.), The Oxford Companion to International Criminal Justice (Oxford University Press, 2009), 260–261. See UNSC, Resolution 687 (1991), 1991 (n 14), paras. 16–19, where the Council decides to establish a fund to pay compensation for damages resulting from the unlawful invasion and a commission to administer it. See generally Alexandros Kolliopoulos, La Commission d’indemnisation des Nations Unies et le droit de la responsabilite´ internationale (Paris: Librairie ge´ne´rale de droit et de jurisprudence, 2001). The UN Compensation Commission was itself criticized for lack of transparency, when – against advice from the Executive Secretary – it refused to grant ius standi to Iraq. See Andrea Gattini, ‘The UN Compensation Commission: Old Rules, New Procedures on War Reparations’, European Journal of International Law 13 (2002), 161–181, 168 and fn. 33. The regimes established, e.g., by UNSC, Resolution 1267 (1999), S/RES/1267 (1999), 15 October 1999 and UNSC, Resolution 1373 (2001), S/RES/1373 (2001), 28 September 2001.

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could qualify as ‘executive’, but also ‘legislative’, and even ‘(quasi-) judicial’.20 That they are both immense and ill-controlled is obvious at the outset. While the Security Council was relatively transparent, then, when it was not making any decisions, as soon as it started deciding – and thereby discovering the enormous power it exercised, and the potentially awesome force attached to its decisions – it also continued limiting the extent to which it would allow just anyone to see the (at the very least questionable)21 manner in which consensus was reached and decisions were made. Since the mid-1970s, but particularly since the 1990s, substantive Council decisions have been hammered out predominantly in ‘informal consultations’, meetings that take place behind closed doors, with no official records being kept, and no possibility for States who are not members of the Council to participate.22 Notably, these are not the private meetings provided for under rule 48 of the Provisional Rules of Procedure, where records are to be kept, and so forth. Rather, they are ‘informal consultations of the whole’, also known as ‘formal informals’23 or ‘global consultations’, as well as informal consultations between less than the full membership of the Council. These have no basis in the Charter or the Provisional Rules of Procedure; it is as if they did not actually happen.24 The formal meetings are limited to the vote on a draft resolution (or on procedural matters) usually already agreed to in detail, in advance, and in secret,25 and to some prepared statements mostly after the vote (but in any event with no effect on the already decided vote), as a glance at the procès verbaux of any number of formal meetings will

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See in detail Antonios Tzanakopoulos, Disobeying the Security Council – Countermeasures against Wrongful Sanctions (Oxford University Press, 2011), 7–10. But there can be educated guesses. See the examples discussed in the text at (nn 29–32) below. See the observations by Me´rime´e (France) in UNSC, S/PV.3483 (1994), 16 December 1994, 2. A term of astounding oxymoronity, which further implies that there are, in an apotheosis of tautology, ‘informal informals’. The distinction is presumably that in the former case the Secretariat keeps confidential unofficial minutes, while in the latter case no minutes are kept at all. UNSC, S/PV.3483 (1994), 1994 (n 22), 2. Ibid. See further Wasum-Rainer/Jahn-Koch, ‘Article 30’ 2012 (n 5), MN 38; Michael C. Wood, ‘Security Council Working Methods and Procedure: Recent Developments’, International and Comparative Law Quarterly 45 (1996), 150–161, 155; Loie Feuerle, ‘Informal Consultation: A Mechanism in Security Council Decision-making’, New York University Journal of International Law and Politics 18 (1985–1986), 267–308.

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readily demonstrate.26 In that respect, one can see the clear separation between the (secret) initiative-stage and drafting-stage from the (still public) adoption-stage. And the more institutionalized the ‘informal consultations’ would become, the farther would the flight towards secrecy continue, with a shift in decision-making away from informal consultations of the whole Council towards smaller groupings.27 Important decisions are now being taken behind closed doors. While some argue that the Security Council has been running much more efficiently since 1990 thanks in part to informal consultations,28 it is at least questionable whether the availability of informal consultations does actually enhance the efficiency of the Council more than marginally. Such consultations have been happening since the 1960s, and at the end of the 1970s a special chamber was constructed next to the official Council chamber to host them; they did not contribute to efficiency back then. It is much more probable that the more aware the Council became of its awesome power, the more it became inclined to hide the particulars of its exercise from the public eye. A particularly telling event, indicative of the working methods of the Security Council, was the passing of Resolution 1530 (2004) within hours of a terrorist attack on Spanish soil: allegedly on Spanish insistence (Spain conspicuously being at the time one of the staunchest US allies in the ‘War on Terror’ and in the 2003 invasion of Iraq), the Resolution condemned ETA for the bombings with virtually no debate (and certainly no public debate or the production of any evidence for ETA’s responsibility), only for it to be revealed not much later that ETA had in fact nothing to do with the attack.29 The Resolution was merely saved by the fact that it did not include any operative content. It is no secret that much of the ‘consensual’ decision26

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See e.g. UNSC, S/PV.6663 (2011), 22 November 2011 (meeting where UNSC, Resolution 2020 (2011), S/RES/2020 (2011), 22 November 2011 was adopted) as one of the many examples where the verbatim record runs to less than half a page; UNSC, S/PV.6557 (2011), 17 June 2011, and UNSC, S/PV.6552 (2011), 9 June 2011 (meetings where UNSC, Resolution 1988 (2011), S/RES/1988 (2011), 17 June 2011; UNSC, Resolution 1989 (2011), S/RES/1989 (2011), 17 June 2011; and UNSC, Resolution 1984 (2011), S/RES/1984 (2011), 9 June 2011 were adopted, respectively) as examples of statements after the vote. See Natalie Reid, ‘Informal Consultations’, January 1999, available at: www.globalpolicy. org, 5–6. See UNSC, S/PV.3483 (1994), 1994 (n 22), 9 (Pakistan); and cf. Reid, ‘Informal Consultations’ 1999 (n 27), 3. UNSC, Resolution 1530 (2004), S/RES/1530 (2004), 11 March 2004, para. 1; see generally The´rèse O’Donnell, ‘Naming and Shaming: The Sorry Tale of Resolution 1530 (2004)’, European Journal of International Law 17 (2006), 945–968.

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making in the Security Council in the months and even years after 9/11 was precipitated by both pressure on the part of, and feelings of solidarity with, the only remaining superpower.30 Another telling incident is that of the United States’ extreme displeasure with States making elaborate presentations of evidence before the 1267 Sanctions Committee when suggesting inclusion of particular individuals or legal entities in the blacklist.31 Commenting on the 1267 Committee in 2005, Jose´ Alvarez noted that ‘neither the public nor non-members know whether the Committee’s determinations are premised on carefully considered dossiers subject to identifiable standards of proof (. . .) or whether it works on non-reciprocal threats’ (or however else, one might add). The lack of transparency in the Committee’s working methods is obviously aimed at ensuring such ignorance: if no one knows how it works, the optimistic and well-intentioned may imagine some sort of proper procedure being followed to impose far-reaching sanctions on individuals. Yet with the help of anecdotal evidence, such as the incident above, or Interpol’s stunned realization that the Council had no more information than names for a number of individuals in the Consolidated List,32 it quickly became clear that the Committee was hiding behind a veil of secrecy in part for less than laudable reasons. It is understandable that with the progressive ‘expansion’ of Security Council powers through practice, augmenting claims,33 including by States,34 would be put forward for a more transparent process in the making 30

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See e.g. Peter Hägel, ‘Standard Setting for Capital Movements: Reasserting Sovereignty over Transnational Actors?’, in Anne Peters et al. (eds.), Non-State Actors as Standard Setters (Cambridge University Press, 2009), 351–378, 362. Relayed by Bibi van Ginkel, The Practice of the United Nations in Combating Terrorism from 1946 to 2008 – Questions of Legality and Legitimacy (Antwerp: Intersentia, 2010), 342. This led to Interpol agreeing to cooperate with the Security Council, but subject to individuals in the Consolidated List who ‘allege that their rights as reflected in the Universal Declaration of Human Rights have been violated as a consequence of information duly processed by Interpol on the request of the Security Council via Interpol’s channels pursuant to the present provisions shall have recourse, whether direct or indirect, to a remedy pursuant to the procedures as set forth by the 1267 Committee’, ICPO-Interpol, General Assembly, The United Nations Security Council’s Request to Interpol to Assist the UN’s Anti-terrorism Fight, Resolution No. AG-2005-RES-05, 74th session, 19–22 September 2005, para. 2. See UNGA, A More Secure World: Our Shared Responsibility – Report of the High-level Panel on Threats, Challenges and Change, A/59/565, 2 December 2004, para. 258. See e.g. UNGA/UNSC, A/49/667, S/1994/1279, 11 November 1994, annex: Aide-me´moire Concerning the Working Methods of the Security Council, para. 1. See further the ‘revitalization’ of the ‘consideration’ of Security Council annual reports in the General

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of decisions that have such far-reaching effects, affecting not only States and their conduct, but also individuals in their daily lives, and even international law itself.35 And yet such claims for reform need to have some foundation in positive law, if it were to be put to the Security Council that it must conform to some specific standard of conduct in the process of making its decisions.36 There is accordingly a need to define the contours of the concept of ‘transparency’ and anchor the claim in ‘first principles’, i.e. establish the source of the Security Council obligation to act in a transparent manner.

2. Transparency in General International and United Nations Law 2.1

The Concept of Transparency and the Extra-legal

Transparency would be hard to qualify as a term of art in international law.37 It can be defined as a general right of access to information held

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Assembly, with delegates criticizing the Council for lack of transparency in decision-making: Hilger/Tichy/Bittner, ‘Article 15’ 2012 (n 11), MN 9; Bailey/Daws, Procedure of the UN Security Council 1998 (n 5), 286–291, but see also 50 and 291. See finally the initiative by Switzerland, Costa Rica, Jordan, Liechtenstein and Singapore, the so-called ‘Small Five Group’ or ‘S5’, to reform the Security Council working methods, primarily through interventions in the General Assembly. The S5 initiative was launched as a follow-up to the recommendation contained in the World Summit Outcome document that the Security Council ‘continue to adapt its working methods so as to increase the involvement of States not members of the Council in its work, as appropriate, enhance its accountability to the membership and increase the transparency of its work’ (UNGA, 2005 World Summit Outcome, A/60/L.1, 15 September 2005, para. 154). The most recent draft resolution by the S5 was tabled in April 2012 (UNGA, Improving the Working Methods of the Security Council, A/66/L.42, 28 March 2012) and included proposals for enhancing the ‘accountability, transparency and inclusiveness of [the Security Council’s] work’. All the while acknowledging that an argument can be made to the effect that, desirable as transparency may be, some decisions, especially on politically sensitive issues – like those the Security Council invariably deals with – are better made in a private forum. See Hitoshi Nasu, ‘Who Guards the Guardian? Towards Regulation of the Security Council’s Chapter VII Powers through Dialogue’, in Jeremy M. Farrall/Kim Rubenstein (eds.), Sanctions, Accountability and Governance in a Globalised World (Cambridge University Press, 2009), 123–142, 131. See further under section 3, below. It is indicative, e.g., that the Dictionnaire de droit international public does not contain a relative term. There is only an entry on publicity more generally, but this relates to the registration of treaties or ‘the requirement of publishing (. . .) an act of an international organization imposed (. . .) by the constitutive act of the organization’, Jean Salmon (ed.), Dictionnaire de droit international public (Bruxelles: Bruylant, 2001), 910. See also the statement by Djibouti in the General Assembly during its 48th session that there may be as many meanings of ‘transparency’ as there are members in the General Assembly,

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by those exercising public powers and in relation to the exercise of these public powers, irrespective of motives or specific interest on the part of those requesting access to the information.38 The International Law Association however, in its Study on the Accountability of International Organizations, distinguished between ‘transparency in (. . .) the decision-making process and the implementation of (. . .) decisions’ and ‘access to information open to all potentially concerned and/or affected by the decisions at stake’, even though it considered both to constitute aspects of the ‘principle of good governance’.39 All the while, the International Law Association admitted that its ‘Recommended Rules and Practices’ ‘do not necessarily reflect a legal obligation for each [international organization]’.40 Transparency and access to information, whether understood to form a single unit or separate facets of the ‘principle of good governance’ or of a ‘model of the rule of law’,41 are not generally seen as anchored in hard law but rather as constituting ‘soft’ guidelines of proper governance, ultimately enhancing the ‘legitimacy’ of such governance, and of the decisions made and implemented in the process.42 ‘Legitimacy’ is a daunting term for the positivist lawyer,43 in particular to the extent that it is juxtaposed with ‘legality’.44 According to Thomas Franck, legitimacy is the property of a rule that derives from the general perception on

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quoted in Bailey/Daws, Procedure of the UN Security Council, 1998 (n 5), 291. There is not even a set definition of ‘transparency’ in ‘sectoral’ regimes of international law. See e.g., for the lack of a ‘set definition of transparency’ in international economic law, CarlSebastian Zoellner, ‘Transparency: An Analysis of an Evolving Fundamental Principle in International Economic Law’, Michigan Journal of International Law 27 (2006), 579–628, 585. Cf. Devika Hovell, ‘The Deliberative Deficit: Transparency, Access to Information and UN Sanctions’, in Farrall/Rubenstein, Sanctions, Accountability and Governance, 2009 (n 35), 92–122, 97. See International Law Association, Report of the Seventy-first Conference (London: International Law Association, 2004), 164 and 172–175. Ibid., 172. Jeremy M. Farrall, United Nations Sanctions and the Rule of Law (Cambridge University Press, 2007), 40; cf. UNSC, The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies – Report of the Secretary-General, S/2004/616, 23 August 2004, 4, para. 6. See Hovell, ‘Deliberative Deficit’ 2009 (n 38), 99. Cf. Andrea Bianchi, ‘Assessing the Effectiveness of the UN Security Council’s Antiterrorism Measures: The Quest for Legitimacy and Cohesion’, European Journal of International Law 17 (2006), 881–919, 884. For such a juxtaposition, see UNGA, A More Secure World, 2004 (n 33), para. 204.

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the part of those affected by it that it has come into being and operates in accordance with the ‘right process’, thereby exerting on them a pull towards compliance.45 This is limited to the process of making a decision (procedural legitimacy); legitimacy however has also been related to the outcome of a particular decision-making process, whereby – even more dauntingly – the outcome must conform to some understanding of fairness on the part of those affected, as overwhelmingly difficult as it may be to arrive to some even seemingly objective determination of what is ‘fair’ (outcome legitimacy).46 The Security Council’s binding decisions are primarily addressed to States; and when States are confronted with a rule demanding compliance issued by an organ to which they have given the power to impose rules on them,47 one does not need ‘legitimacy’ to explain their compliance or non-compliance (except within a social sciences context, where one would try to discern ‘perceptions’ of States).48 Rather, if the States, being in the first instance iudices in causae suae,49 find that the Security Council has not decided ‘in accordance with the right process’, they are arguing in effect that the Security Council acted illegally and not illegitimately: it did not comply with the process of decision-making imposed on it by the Charter or by general international law. Similarly, if they feel that the Security Council’s decision is not ‘fair’, they need to somehow 45

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Thomas M. Franck, The Power of Legitimacy among Nations (New York: Oxford University Press, 1990), 19 and 24. Cf., specifically with respect to the Council, Bailey/Daws, Procedure of the UN Security Council 1998 (n 5), 393. See UN Charter, art. 25. Witness the conflation of legality and legitimacy (that which is legal is legitimate) in O’Donnell, ‘Naming and Shaming’ 2006 (n 29), 963–965 (e.g. ‘legality is the indispensable foundation of legitimacy’; ‘legitimacy demands that a decision be both substantively legal and procedurally correct’). Legitimacy then is bereft of any distinctively legal significance – even if it remains a convenient social-scientific explicative device. As they are under general international law: see ICJ, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of 28 May 1951, ICJ Reports, 1951, 26; Affaire du Lac Lanoux (Espagne, France), Award of 16 November 1957, 12 RIAA 281–317, 310, para. 16; Air Service Agreement of 27 March 1946 between the United States of America and France, Award of 9 December 1978, 18 RIAA 417–493, 443, para. 81; ICJ, Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment of 24 May 1980, ICJ Reports, 1980, 28, para. 53; ICJ, Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits), Judgment of 27 June 1986, ICJ Reports, 1986, 134, para. 268; see generally for the application of this within the UN framework Tzanakopoulos, Disobeying the Security Council 2011 (n 20), 112–122.

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connect their claim to an obligation on the part of the Council to comply with substantive rules of conduct (as the only possible incarnation of ‘fairness’ in law). These are the only concepts of ‘right process’ or ‘fair decision’ that have some hope of being objective as far as possible, rather than being hopelessly overdetermined by the observer’s necessarily subjective (ideological, moral, and so forth) inclinations.50 We should then be looking to international law to find whether there is in fact an obligation on the UN (and thus the Security Council) to act (decide) in a transparent manner, and to allow access to information. These obligations may be found either in the UN Charter, or in general international law.51 Indeed, if the ‘acid test’ of legality of Council action is the level of acceptance of its practice by States,52 one would be wise to remember: (1) that the final and authoritative interpretation of the Charter, the only one with binding force, is given by the ‘general membership’ of the organization;53 and (2) that if in general international law responsibility for breach of obligations arises automatically, it still needs to be invoked in order for the process of implementation to be set in motion.54 Consistent – even if implied – invocations of responsibility under international law for breach of a specific obligation constitute evidence of custom, as they encompass both elements of practice and opinio iuris in that single act of invocation.

2.2

Transparency in UN Law

Rule 48 of the Provisional Rules of Procedure of the Security Council demands that the Council meet in public, but of course this is only to the 50

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The spectre of such a danger is highlighted by Bianchi, ‘Anti-terrorism Measures’ 2006 (n 43), 885; cf. Franck, Power of Legitimacy 1990 (n 45), 243, noting that ‘fairness will often be in the eye – the value system – of the beholder’. This holds good not just for States as the original subjects of international law, but for commentators as well. See further Ian Hurd, After Anarchy – Legitimacy and Power in the United Nations Security Council (Princeton University Press, 2007), 30. See in summary Bianchi, ‘Anti-terrorism Measures’ 2006 (n 43), 886–887; and in detail Tzanakopoulos, Disobeying the Security Council 2011 (n 20), 54–84. Bianchi, ‘Anti-terrorism Measures’ 2006 (n 43), 887 refers to the ‘ultimate test of legitimacy’ being that of acceptance of Security Council practice by member States, and yet it is argued here that the test is rather one of legality for the reasons stated. Documents of the United Nations Conference on International Organization, vol. 8 (London: United Nations Information Organizations, 1945/1946), 710. ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries’, Yearbook of the International Law Commission II(2) (2001), 31–143, 116 (introduction to part III).

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extent that the Council does not decide ‘otherwise’; further rules provide for publicity requirements regarding records.55 These (provisional) rules are binding on the Security Council under the UN Charter,56 and they constitute elements of the ‘right process’ in accordance with which a decision is validly made. However, this obligation incumbent on the Security Council is blunted by two related considerations. First, under the Charter, the Security Council is the ‘master of its own procedure’, meaning that, under article 30, only it, and no other UN organ, may decide on its rules of procedure.57 It is the only organ empowered to adopt and amend these rules, and thus the only one which can authoritatively interpret them,58 even if the General Assembly maintains its general power under article 10 of the Charter to ‘discuss any question and any matters (. . .) relating to the powers and functions of any organs provided for in the (. . .) Charter’.59 Only an interpretation, amendment, or deviation from the Provisional Rules of Procedure that would result in a violation of the Charter is not permitted – because the Security Council cannot of course authoritatively interpret the Charter.60 Second, taking into consideration the distinction between the initiative-/drafting-stage and the adoption-stage drawn above,61 it could be argued that the Security Council still does indeed meet in public to adopt resolutions, as per its Provisional Rules of Procedure, but has 55 56

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UN, Provisional Rules of Procedure, 1982 (n 4); and text at (n 4) above. UN Charter, art. 30 empowers the Council to adopt its own Rules of Procedure. It could be argued that the Security Council has kept the Rules of Procedure in ‘provisional’ status for fear that definitive Rules of Procedure would have some legal value that could cause difficulties (read: they could be considered binding and States might actually require the Council to conform to them). Cf. Leprette, ‘Article 30’ 1991 (n 5), 544. However, an argument can be made that the Council is actually bound by its ‘provisional’ Rules of Procedure anyway, as a matter of UN law, until such time as it adopts a ‘definitive’ set. See Wasum-Rainer/Jahn-Koch, ‘Article 30’ 2012 (n 5), MN 14 with further references; Dolzer/Kreuter-Kirchhof, ‘Article 31’ 2012 (n 6), MN 12; cf. Conforti, ‘Legal Effect of Non-Compliance’ 1969 (n 7), 481–482. Wasum-Rainer/Jahn-Koch, ‘Article 30’ 2012 (n 5), 565, MN 8–9; Conforti, ‘Legal Effect of Non-Compliance’ 1969 (n 7), 482. ICJ, Question of Jaworzina, Advisory Opinion, [1923] Publications of the Permanent Court of International Justice Series B No. 8 (6 December), 37: ‘the right of giving an authoritative interpretation of a legal rule belongs solely to the person or body who has the power to modify or suppress it’. Wasum-Rainer/Jahn-Koch, ‘Article 30’ 2012 (n 5), MN 9. Cf. Conforti, ‘Legal Effect of Non-Compliance’ 1969 (n 7), 483–485; and generally Tzanakopoulos, Disobeying the Security Council 2011 (n 20), 112–113. See text at (nn 26–27) above.

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decided in general to meet in ‘informal consultations’ during the initiative-/drafting-stage. As legally problematic as that may be (normally such a decision to hold meetings in private needs to be made ad hoc in each instance, and normally also in a public meeting, where the reason for privacy would have to be submitted and debated),62 the lack of any general, sustained and widespread protest on the part of members of the Council or, more importantly, of the membership of the Organization (and despite the occasional rhetoric on the need for more transparency), amounts to subsequent practice which renders the Council’s practice legal, i.e. in conformity with the Charter.63 As far as article 24(3) of the UN Charter is concerned, the Security Council is indeed complying with its obligation to submit Annual and Special Reports to the UN General Assembly, as devoid of substance as these may be.64 It is then up to the General Assembly to demand more substantive reporting on the part of the Council, in fulfilment of its own obligations (as they may be interpreted) under article 15(1) of the Charter. To the extent that the General Assembly has not done so in any sustained and pressing manner, there is little to accuse the Security Council of. And even if the General Assembly were to assume a less deferential position on the matter, it could still do little to control the Security Council in any legally significant sense of the term; it could only perhaps interpret the Council’s obligation as more stringent than how the Council currently views it – but the Security Council would not be bound under the Charter to accept such interpretation, unless it was somehow demonstrably supported by the ‘general membership’ of the Organization.

2.3

Transparency in International Law

Some serious attempts have been made to anchor the concept of transparency in the category of ‘general principles of law recognized by 62

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Cf. ICJ Statute, art. 46, cast in almost identical terms as UN, Provisional Rules of Procedure 1982 (n 4), rule 48; and cf. Wasum-Rainer/Jahn-Koch, ‘Article 30’ 2012 (n 5), MN 34–35. Cf. ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports 1971, 22, para. 22. An interpretation by a UN organ which is not ‘generally acceptable’ by the membership of the organization will be without binding force: Documents of the United Nations Conference 1945/1946 (n 53), 710, but then of course there would have to be some significant protest. See the sources cited in (n 11) and (n 34) above.

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civilized nations’ as per article 38(1)(c) of the Statute of the International Court of Justice.65 And yet the problem with such attempts is that the detailed regulation of a general right of access to information within a domestic legal system is almost impossible to transpose to the international legal order in general or to the UN/Security Council in particular, for the simple reason that it requires the existence of courts with compulsory jurisdiction in order not just to function properly, but rather to function at all. This is so irrespective of how far one may be willing to go in order to extrapolate merely the general contours of the principle. Consider, e.g., the facet of the right of access to information/principle of transparency which pits against one another the public interest in avoiding threats to national security or disruption in international relations, and the public interest in the disclosure of relevant information.66 In the domestic legal system, and in the last instance, it is the domestic court that will have to undertake the balancing exercise between the public interests involved, and which will have to concretize and apply the relevant test.67 In a potential transposition to the international legal system, who could be the final arbiter other than the interested State or the Security Council itself? In the former case, we would be merely falling back to the generally decentralized nature of the international legal system: States are iudices in causae suae (but at their own risk).68 In the latter case we would have to accept that within the UN system the Council acts with absolute discretion when it comes, e.g., to determining the existence of a threat to the peace (for the sake of argument). If this is so, the Security Council could determine that a threat to the peace would be precipitated by the disclosure of sensitive information, thereby having to police itself and defeating the whole purpose of the exercise of imposing on it an obligation of transparency/access to information under the general principles of law. As such, the attempt to anchor a principle of transparency or a right of access to information in general principles under article 38(1)(c) ICJ Statute does not appear particularly helpful. This is also because one would still be reliant on a State to bring up the relevant obligation against the Council: if anything, any potential obligation on the UN and its Security Council to act transparently would be owed to States in the first instance. Similar considerations apply to an (even more difficult) 65 66 68

See generally Hovell, ‘Deliberative Deficit’ 2009 (n 38), 92–122. See e.g. ibid., 107–108. 67 This is indeed conceded to some extent ibid., 108–111. See text at (n 49) above.

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attempt to anchor an obligation to act transparently in general (customary) international law. The latter in any event would require proof of practice and opinio iuris, and the near-impossibility of finding such evidence with respect to transparency and delimiting the alleged obligation’s precise normative content is probably what has caused scholars to seek refuge in the notion of ‘general principles’ in the first place. But if, despite apparent demand, there is no clear international obligation on the United Nations and its Security Council to act transparently in the making of decisions with as far-reaching effects as those under Chapter VII of the Charter, then is the discussion about enhancing the Council’s transparency already a lost battle? Or a battle that cannot be won without a (realistically unlikely at best) revision of the UN Charter? The next section turns to an alternative conception of an obligation of the Council to act transparently.

3. Transparency as an ‘Ancillary’ Obligation Devika Hovell notes in her study of transparency as a general principle applicable to Security Council decision-making that, even if not yet a general principle of law, transparency is a nearly universal principle of good governance and hence ‘to the extent that the Security Council wants to adopt a “best practice” approach to its processes and procedures, it would be well-advised to incorporate respect for a public right of access to information’.69 No doubt. Others too have indicated that the working methods of the Council should become more transparent with reference to a wide variety of issues.70 (Even though this begs the question of how much more transparent they should become).71 And yet the point is that the Security Council does not ‘want’ to do such a thing – and 69 70

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Hovell, ‘Deliberative Deficit’ 2009 (n 38), 113 (emphasis added). E.g. Andrew Clapham, ‘Terrorism, National Measures and International Supervision’, in Andrea Bianchi (ed.), Enforcing International Law Norms against Terrorism (Oxford: Hart, 2004), 283–306, 297 (on the Council’s ‘working definition’ of terrorism); cf. generally Anne Peters, ‘Dual Democracy’, in Jan Klabbers/Anne Peters/Geir Ulfstein, The Constitutionalization of International Law (Oxford University Press, 2009), 263–341, 326–330 on the need for transparency in international governance; see also (nn 33–34) above and text at (nn 75–76) below. Bailey/Daws, Procedure of the UN Security Council 1998 (n 5), 393 for example argue that the Council has, given that it acts on behalf of the organization’s membership, ‘a special obligation to act as transparently as possible, so long as this does not interfere with its primary responsibility’ – but how much is possible? On this point, see further below.

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why should it? No powerful actor will willingly relinquish even part of its power without being pressed to do so. To borrow from Andrea Bianchi, playing on Koskenniemi’s metaphor of the police (Security Council) being in the temple (of justice),72 the abstract invocation of the will of God (the rule of law) is ‘unlikely to convince the police to disperse and leave the temple’.73 Indeed. The police needs to be ‘actively convinced’ to start moving out.74 ‘Convincing’ then may have to take the form of something more than simple argument or proposals for reform. It is telling that the five Permanent Members (P5) reacted angrily to the suggestions of the S575 that the working methods of the Council be geared towards offering more transparency. In response to the first draft resolution submitted by the S5 in the General Assembly in 2006,76 the P5 made it clear that they did not appreciate the General Assembly snooping into how the Security Council organizes its work and exercises its functions.77 Mere admonition does not go down well with the Council, apparently. This is confirmed by the fate of the draft resolution submitted by the S5 in April 2012:78 According to the statement of Switzerland on behalf of the S5 on 16 May 2012, the draft resolution was withdrawn after intense pressure from the Permanent Members of the Council, in order to ‘avoid a procedurally very complex discussion in this room [the General Assembly Hall]’.79 Michael Wood recalls that ‘recent procedural developments within the Council have in large measure been (. . .) a reaction to suggestions or criticisms from within or outside the Council, based essentially on calls for greater “transparency” and “accountability” to the United Nations

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Marti Koskenniemi, ‘The Police in the Temple – Order, Justice and the UN: A Dialectical View’, European Journal of International Law 6 (1995), 325–348. Bianchi, ‘Anti-terrorism Measures’ 2006 (n 43), 918. Cf. Wood, ‘Security Council Working Methods’ 1996 (n 25), 161: ‘[c]hange is more likely under pressure of events than through abstract study’ (emphasis added). On the S5, see (n 34) above. UNGA, Improving the working methods of the Security Council, A/60/L.49, 17 March 2006. For the discussion, see UNGA, A/60/PV.95, 20 July 2006; and UNGA, A/60/PV.96, 21 July 2006. See (n 34) above. See the declaration on behalf of the Small Five, delivered by Paul Seger on 16 May 2012 during the 66th session of the General Assembly, on agenda item 117 (on file with the author).

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membership at large’.80 This is not surprising, and indeed provides the background for understanding how the Security Council might, through specific, concentrated reactions, be forced to concede a more transparent working method. But before it is shown why specific reactions might make the Council more transparent, a somewhat differentiated understanding of transparency needs to be put forward.

3.1

Discretion and Control in the Operation of the Security Council

The Security Council clearly has wide discretion under Chapter VII as to both when to impose binding measures on member States (under article 39) and what measures it will impose (under article 41). But there is little doubt that this discretion, wide as it may be, is circumscribed by law.81 An attempt to trace the limits international law places on Security Council powers is beyond the scope of this paper, and it has been undertaken elsewhere.82 By way of brief summary it can be restated here that the UN Charter imposes obligations on the organization, and thus also on the Security Council. Further, the UN, and the Security Council as its organ, is a subject of international law, and thus it is also subject to obligations under general international law. The Security Council is then bound, in the exercise of its powers, both by the obligations imposed on the UN under its own Charter (such as, for example, the obligation to determine the existence of a threat to the peace before the Council acts under Chapter VII, or the obligation to respect the principle of proportionality in taking measures to address the threat to the peace) and by the obligations imposed on the UN under general international law (such as, for example, the obligation to respect certain human rights which have attained the status of customary law, or the obligation to respect the law of armed conflict).83 80

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Wood, ‘Security Council Working Methods’ 1996 (n 25), 154. See also Bailey/Daws, Procedure of the UN Security Council 1998 (n 5), 66–68. See Ian Brownlie ‘The Decisions of Political Organs of the United Nations and the Rule of Law’, in Ronald S. J. Macdonald (ed.), Essays in Honour of Wang Tieya (Dordrect: Nijhoff, 1994), 91–102, 95; ICJ, Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Judgment of 27 February 1998, ICJ Reports, 1998, 110 (Dissenting Opinion of Judge ad hoc Sir Robert Jennings). See in general Tzanakopoulos, Disobeying the Security Council 2011 (n 20), 54–84 with further references to the abundant literature. See ibid. and further (n 86) below.

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As there is no centralized control of legality over Security Council action, the question who (and in what manner) may control the Security Council poses itself with some force. Given the decentralized structure of the international legal order, the only plausible response is to accept that States, acting at their own risk, have maintained their power to control the Council for compliance with the UN’s international obligations, as imposed by the Charter and general international law.84 This is confirmed by the fact that the Charter itself does not institute centralized control of Council action, does not allow judicial review of the Council save incidentally or through non-binding Advisory Opinions of the International Court of Justice, and – in the final analysis – by the fact that it refuses to assign any authoritative power to interpret the UN Charter to any of the organization’s organs. The travaux support this, by clearly pointing to the fact that only the ‘general membership’ of the organization may advance interpretations of the Charter that lay claim to binding force.85 If under international law States retain the power to control the Council in a decentralized manner, then the situation can take either of the following two courses: either the Council takes decisions in a manner that allows access of States to information, so that the latter can undertake (limited) review of the Council decision, both procedurally and substantively;86 or the Security Council refuses access to such information with the concomitant result that States do not have any facts on the basis of which they can make an informed decision as to the legality of Council action (except if and when this is apparent on the face of the decision adopted, which it rarely ever is – the Security Council is sparing as to its motivations and reasons in its resolutions). In that latter case, States would have no way of knowing whether the Council has been acting within the limits established by international law, and that alone could be enough to allow them to question the decision: when decisions with far-reaching effects are made, the addressees are more likely than 84 86

See (n 49) and (nn 52–53) above. 85 See (n 53) above. The limits of the review (or rather the standard of review) would be determined by the particular content of the relevant obligation that is incumbent on the UN and thus the Council. For example the obligation to act only in response to a threat to the peace under art. 39 of the UN Charter allows significant – even if not absolute – discretion to the Council, and to that extent limits the review of member States, or – put another way – only allows for a rather lax standard of review to be applied. By contrast, the obligation of the Council to respect fundamental human rights in the imposition of binding measures allows for review co-extensive with the thoroughness of the international regulation of the relevant right.

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not to react negatively to them if they have no way of independently confirming, even to a limited extent, at least the legality of that which they are being made to conform to. This is particularly so when no avenues for officially challenging the decision are available.

3.2

The ‘Ancillary’ Nature of Transparency

In effect this would mean that ‘transparency’ is not a free-standing obligation incumbent upon the Council, which can be simply traced back to some traditional source of international law. Rather, it appears as an ancillary obligation, which is imposed by the decentralized nature of the system, in order to allow the mechanism of decentralized control of legality to operate. If States have the right to control the legality of Council action, then they must also have the concomitant (ancillary) right to demand sufficient information on which to reach a conclusion. If no information at all is provided, it is likely that States will react, threatening disobedience; if they do not, then they will be deemed to accept that the Security Council may make the particular decision in the exercise of its discretion without offering any information in support of, or as justification for, its action. Put another way, ‘transparency’ is not a free-standing primary norm, which prescribes or proscribes or permits certain action. It is an ancillary obligation (of the Council) and right (of the member States) which mediates between the powers of the Council to act, and the residual powers of member States to exercise diffuse control over the exercise of those Council powers. Vaughan Lowe has called such norms ‘interstitial’, because they can be seen as operating in the interstices between primary rules, modifying their operation and keeping them in harmony when they threaten to overlap or conflict with one another.87 Transparency has no independent normative charge of its own: it cannot be seen as prescribing or permitting or prohibiting any specific action; we do not know how much of it is good; it is context-dependent. Andrea Bianchi has awarded transparency the prize for ‘best supporting actress’.88 Indeed, it is when transparency operates as a norm that is ancillary to 87

88

See Vaughan Lowe, ‘The Politics of Law-making: Are the Method and Character of Norm Creation Changing?’, in Michael Byers (ed.), The Role of Law in International Politics (Oxford University Press, 2000), 207–226, 213–216. See Andrea Bianchi, ‘Introduction: On Power and Illusion. The Concept of Transparency in International Law’, chapter 1 in this volume. I am not sure why it is ‘actress’ and not ‘actor’. Perhaps it comes down to grammatical gender: ‘transparency’ in

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the operation of other norms, in order to regulate or harmonize their relationship, that it becomes meaningful. It is telling that States have demanded transparency, access to information, and further justification when the Council has made questionable determinations of the existence of a threat to the peace under article 39 of the Charter, or when it has imposed far-reaching non-forcible measures affecting fundamental rights of individuals, in particular in the context of counter-terrorism.89 States have expressed this demand by threatening, in the last instance, to disobey the Security Council’s binding commands. Disobedience of the Security Council may take a number of forms, but it primarily takes the form of non-implementation of allegedly illegal Council decisions.90 The Security Council has discretion to act to maintain international peace – but States have decentralized power to control the Council’s discretion:91 transparency of Council action allows the States to exercise that control, and at the same time limits the Council’s discretion. The same mechanism is in operation also in circumstances where the Security Council has no power to impose obligations on States, but rather where member States are expected to contribute to the activities of the organization. The reinvigoration of the Security Council caused the locus of decision-making on peacekeeping operations to be moved from the Assembly to the Council. But when troop-contributing States came up against the peculiarly opaque decision-making of the Council, and without the benefit of article 44 of the Charter being directly applicable, it was their threat to withdraw from supporting the operations that forced the Council to open up the relevant meetings to them as well.92 It is thus the fear of disobedience (predominantly as non-implementation) or non-cooperation (when it can impose no obligation) that forces the

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Italian is feminine (trasparenza), as it is in Greek (διαφάνεια). So she is also in German (Transparenz) and in Spanish (transparencia). See examples in section 3.3 below. See further Tzanakopoulos, Disobeying the Security Council 2011 (n 20), 174–189 and 191–198. Cf. the quote from Bailey/Daws, Procedure of the UN Security Council 1998 (n 5), at (n 71) above. Cf. Reid, ‘Informal Consultations’ 1999 (n 27), 3; Bailey/Daws, Procedure of the UN Security Council 1998 (n 5), 162–163; cf. UNSC, Statement by the President of the Security Council, S/PRST/1994/81, 16 December 1994; and UNSC, Statement by the President of the Security Council, S/PRST/1996/13, 28 March 1996: in both the Council notes that it takes cognizance of the ‘views’ and ‘wishes’ expressed by States, and reacts.

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Security Council to concede to demands for (some) transparency. This pattern of reaction–protest–threat of disobedience or non-cooperation allows the member States to keep the Security Council in check, in terms of obtaining some balance between the need for confidentiality that allows for a quick and effective response in the maintenance of international peace, and the need for publicity, justification, and access to information that allows the membership to keep excesses by the most powerful organ of the UN under some control. But how is this balance to be determined? It is to this question that the next sub-section turns.

3.3

How Much Transparency?

State practice in reaction to Council action determines not solely whether the Security Council must act transparently in the exercise of each particular function, but also, and most critically, just how much information the Security Council must divulge. For example, reactions by States to determinations by the Security Council that a particular situation constitutes a threat to the peace have been rather limited. Only in extreme situations did States react forcefully to the determination (or the eventual non-withdrawal of the determination) of the existence of a threat to the peace, as for example in the case of the exclusion of peacekeepers from the jurisdiction of the ICC,93 or – after some years – in the case of Libyan sanctions over the Lockerbie bombing, when Libya was proposing to cooperate but the Security Council would not negotiate without offering any reasons for such recalcitrance.94 In both cases the Security Council was forced to backtrack rather than attempt to justify its determination. By contrast, States have reacted much more strongly in the case of counter-terrorist measures which target individuals, specifically those

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UNSC, Resolution 1422 (2002), S/RES/1422 (2002), 12 July 2002; see the reaction of States in their statements in the verbatim record, in UNSC, S/PV.4568, 10 July 2002, 3 (Canada), 16 (Jordan), 20 (Liechtenstein), 26–27 (Mexico) and 30 (Venezuela); and UNSC, S/PV.4568 (Resumption 1), 10 July 2002, 7 (Samoa), 9 (Germany) and 16 (somewhat more guarded), the UK. All of them questioned the existence of an actual threat to the peace; the decision to exclude peacekeepers from ICC jurisdiction was renewed once but never again. See the OAU, The Crisis between the Great Socialist People’s Libyan Arab Jamahiriya and the United States of America and the United Kingdom, AHG/Dec.127 (XXXIV), 8–10 June 1998, para. 2; cf. UNSC, S/PV.3684, 29 July 1996, 6–11.

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under the 1267 sanctions regime,95 at first through their governments and increasingly through their domestic courts forcing reaction upon the governments.96 Indeed it is important to stress that it is domestic courts that have forced the States to react to Security Council counter-terrorist measures impacting on individual rights. The courts have noted the opaque working method of the Council, and have rejected the power of the Council to impose such far-reaching targeted sanctions without demonstrating any respect for rights of individuals to be heard, to have access to an effective remedy, and to be able to respond to charges made against them – the explicit or implicit reference being to Franz Kafka’s The Trial, where Josef K. is found accused of something, without ever being told what that something is.97 The parallel here is clear: just as an individual must know what they are accused of to be able to respond, so States must know on what basis a decision has been made in order to be able to independently control it. Sustained pressure on the part of States has led to significant ‘openingup’ of the listing and delisting procedures of the sanctions regime: at first no reasons were given at all for addition of a name in the Consolidated List, no individual petition for removal was available, no justification for non-removal was offered. Yet more than a decade down the line, clearly in response to pressure from States (in large part imposed on them by

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The regime was split in late 2011, with UNSC, Resolution 1988 (2011), 2011 (n 26), targeting the gamut of 1267 sanctions against those associated with the Taliban, while UNSC, Resolution 1989 (2011), 2011 (n 26), targets those associated with Al Qaida. An important difference is that those targeted under the 1989 regime have far better remedies available than those targeted under 1988; see further text at (nn 99–101) below. See generally Antonios Tzanakopoulos, ‘Domestic Court Reactions to UN Security Council Sanctions’, in August Reinisch (ed.), Challenging International Organizations before National Courts (Oxford University Press, 2010), 54–76; Antonios Tzanakopoulos, ‘Collective Security and Human Rights’, in Erika de Wet/Jure Vidmar (eds.), Hierarchy in International Law – The Place of Human Rights (Oxford University Press, 2012), 42–70. See generally Federal Court of Canada, Abdelrazik v. Canada (Minister of Foreign Affairs), Judgment of 4 June 2009, [2009] FC 580, [2010] 1 FCR 267; cf., e.g. UK Court of Appeal – Administrative Court, Hay v. HM Treasury, Judgment of 10 July 2009, [2009] EWHC 1677 (Admin); and UK Supreme Court, HM Treasury v. Ahmed and Ors, Judgment of 27 January 2010, [2010] UKSC 2; as well as EU Court of Justice (Grand Chamber), Kadi and Al Barakaat v. Council and Commission, Judgment of 3 September 2008 (in joined cases C-402/05 P and C-415/05 P), [2008] ECR I-6351; and EU General Court (Seventh Chamber), Kadi v. Commission, Judgment of 30 September 2010, [2010] ECR II-05177.

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their courts),98 the Security Council at first introduced a focal point where individuals could apply for delisting,99 then streamlined the procedure to provide individuals with (and publish online) a summary narrative of the reasons for the listing,100 and finally established an Office of the Ombudsperson to ‘mediate’ between those seeking delisting and the competent Sanctions Committee.101 If in 2005 no one could know how the Sanctions Committee made its decisions for listing, we do now, and States (in part forced as they are by their domestic courts) keep pressing towards a more human rights-conscious procedure.102 How much transparency the States will demand, then, and how much transparency the Council will give away, will depend on the content of the particular norm the Council is susceptible to having violated, and the determination of the States in reaction to the Council.103 Indeed, the examples from the practice of the Council, and of the States reacting to it, that were cited above yield this conclusion: depending on the margin of discretion that the States acknowledge, under the relevant provisions of the Charter and the surrounding circumstances, to the Security Council, they will either acquiesce to the Council’s actions, or react more or less 98

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See the express admission of this in the preamble of UNSC, Resolution 1904 (2009), S/RES/1904 (2009), 17 December 2009, para. 9 where it is stated that the Security Council is acting in response to ‘challenges, both legal and otherwise, to the measures implemented by Member States under paragraph 1 of this resolution’. See UNSC, Resolution 1730 (2006), S/RES/1730 (2006), 19 December 2006, annex. This is the only remedy available for those targeted under UNSC, Resolution 1988 (2011), 2011 (n 26). See UNSC, Resolution 1822 (2008), S/RES/1822 (2008), 30 June 2008. See UNSC, Resolution 1904 (2009), 2009 (n 98), para. 20 and annex II for the establishment of the Office of the Ombudsperson; UNSC, Resolution 1989 (2011), 2011 (n 26) for the extension of its mandate and the strengthening of the procedure. Recourse to the Ombudsperson is only available for those targeted under the latter resolution. For further evidence see the letter by the Swiss Permanent Representative to Chair of the Security Council 1267 Sanctions Committee of 22 March 2010, where Switzerland notifies the Council of the Swiss Federal Council’s decision to disobey certain Security Council sanctions against individuals in the 1267 Consolidated List. Council of Europe, Committee on Legal Affairs and Human Rights, Information Note: Compatibility of UN Security Council and EU [terrorist] Black Lists with European Convention on Human Rights Requirements, AS/Jur/Inf (2010) 05, 7 December 2010, 6. The question of how much transparency will be conceded/wrestled does not simply refer to the quantity of information, but also to the recipients of the information, which may be non-members of the Council (i.e. States), some non-members only, or even the general public. For example with respect to peacekeeping, transparency conceded/ wrestled refers only to those non-members of the Council who contribute troops to the operation (see (n 102) above), whereas with respect to the 1267 sanctions regime the narrative summary of reasons for listing is published online (see (n 100) above).

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forcefully. The existence and intensity of reaction at once clarify how much discretion the ‘membership of the Organization’ accords the Security Council, and, correspondingly, how much transparency it demands in its operation in order to be able to control the exercise of discretion. It is difficult to generalize the degree of transparency required, because of the multi-faceted nature of modern Security Council action towards maintaining international peace and security;104 it is possible, however, to position the intensity of the reaction by States, and the corresponding degree of transparency demanded, on a spectrum. The degree is directly related on the impact of Council measures on crucial State interests, on individual rights, and on the interpretation of the Charter – these allow more or less flexibility (read: discretion) for the Council, and demand more or less transparency in its functioning. The generic (or ‘soft’) pressure of the S5 for Council working methods reform, for example, has prompted resistance on the part of the Council,105 even if it has yielded some meagre results, primarily of a programmatic nature.106 In the case of determination of a threat to the peace, only in extreme circumstances has there been any concerted reaction of States: a sign of the large discretion (but still within limits) recognized to the Council, and of the relatively small degree of transparency required in the case of such almost ‘executive’ calls. Conversely, in the case of counter-terrorist sanctions impacting on fundamental rights of individuals, the reaction has been much more intense, the margin of discretion correspondingly narrower, and the demands for transparency far broader. Positioned at the middle of the spectrum is the case of peacekeeping operations, where only direct stakeholders have pressed for and attained a measure of participation and transparency. The dialectical relationship between the type of action that the Council is taking and the reactions of the member States to such action constitutes practice that helps elaborate the balance between the competing public interests in access to information and in effective and prompt action for

104 106

See text at (nn 14–19) above. 105 See text at (nn 77–79) above. Despite the P5’s angry reaction in 2006, the Security Council did revive, that same year, the dormant ‘Working Group on Documentation and Other Procedural Questions’, which resulted in a UNSC, Note by the President of the Security Council, S/2006/507, 19 July 2006, incorporating some programmatic declarations. However, the P5’s resistance led eventually to the withdrawal of the S5’s draft resolution in 2012; see text at (n 79) above.

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the maintenance of peace, and determines the degree of transparency required in the exercise of the Council’s multi-faceted powers.

4. Conclusion Transparency, a nebulous term, has been said to constitute the ‘alter ego’ of accountability,107 another nebulous term indeed;108 or to constitute a ‘prerequisite’ of accountability.109 This is because it enables critique and control by the public of the actor one is seeking to hold accountable. In international law, this diffuse critique and control by the public is nothing but the general power of States to control, through auto-determination, and at their own risk, the conduct of other subjects, whether States or international organizations, for lack of any specific regulations transferring and centralizing that power to another actor, such as a court or tribunal.110 In such a setting, transparency operates to facilitate that control, which leads to the determination of wrongful acts on the part of an organization (here the UN, and specifically its Security Council), and the invocation of its responsibility. At the same time, this ancillary or interstitial norm is imposed on the organization through the threat of reaction, disobedience and non-cooperation. The precise balance between discretion and control is determined through the practice of States in conceding more or less discretion/demanding more or less control: to control you need information as to what has been decided and how. You need a measure of transparency in the operation of the subject being controlled. Just how much is under constant (re-)consideration. 107 108

109 110

Carol Harlow, Accountability in the European Union (Oxford University Press, 2002), 7. See further Tzanakopoulos, Disobeying the Security Council 2011 (n 20), 2–4 with further references. Peters, ‘Dual Democracy’ 2009 (n 70), 327. One should keep in mind, however, that States – even if treated as unitary under public international law – are subjected to internal pressures by various actors, be it their courts (see text at (nn 96–102) above) or even the general public.

15 Transparency as a Cornerstone of Disarmament and Non-proliferation Regimes mirko sossai

1. Introduction Transparency is essential for the effectiveness of the existing disarmament and non-proliferation regimes. The notion is interrelated with the confidence-building function of the relevant conventions, as part of their verification mechanisms aimed at ensuring State compliance. The main objective of disarmament efforts is a negotiated reduction of armaments to zero or to a minimum level, as a means to avoid recourse to the use of force in international relations. There is a difference in emphasis with the contiguous concept of arms control, coined during the Cold War: the instruments adopted during that period sought the goal of stabilizing the security context, by introducing measures consisting of mutual limitations of armaments or a freeze of their number at a given level. The same objective characterizes the 1968 Nuclear Nonproliferation Treaty (NPT),1 which was designed to maintain the status quo on the basis of the distinction between nuclear-weapons States and non-nuclear-weapons States. The UN Charter, while affirming the relationship between the level of armaments and the maintenance of international peace and security, focuses on the issue of their regulation more than on the aim of disarmament: the content of articles 11 and 26 reflect the viewpoint of the drafters that it was necessary to keep a certain level of armaments for the purposes of the collective security system envisaged in Chapter VII.2 1 2

Treaty on the Non-proliferation of Nuclear Weapons, 1 July 1968, 729 UNTS 161. See Hector Gross-Espiell, ‘Article 26’, in Jean-Pierre Cot/Alain Pellet/Mathias Forteau (eds.), La Charte des Nations Unies: Commentaire article par article, vol. 1 (Paris: Economica, 3rd edn, 2005), 919–933, 922.

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But the negotiation process came to an end when the nuclear weapons had not yet shown all their destructive potentialities. The bipolar confrontation of the nuclear superpowers posed new challenges. During the 1960s, the approach of the social sciences on arms control, particularly in the United States, was very much influenced by the employment of models drawn from game theory, in particular the two-player prisoners’ dilemma, to understand interactions between States.3 The merit of such studies lies in a detailed identification of the functions of arms control efforts: they should improve the stability and predictability of the States’ mutual conduct, in order to create the necessary confidence among them, and either to prevent surprise attacks or to reduce the risk of an accidental war, by avoiding misperceptions.4 A solution of the security dilemma can only be achieved if States communicate to each other that they have no intention to use force. Therefore, the production of information becomes one of the most important dimensions in the field of disarmament and arms control. In this narrow perspective, transparency means State openness, to be achieved by way of voluntary notifications or compulsory declarations regarding the data on arms, policies and activities. A specific instrument of diplomacy during the Cold War period was the development of confidence-building measures, which involved the communication of credible evidence regarding the absence of feared threats. Paradigmatic examples of such measures are those adopted in the context of the CSCE/ OSCE process.5 In the last fifty years, the law on disarmament has developed essentially via treaty law: the International Court of Justice famously stated in the Nicaragua case that ‘in international law there are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise, whereby the level of armaments of a sovereign State can be limited’.6 The most developed discipline covers the category of weapons of mass destruction: the three pillars are constituted by the 3

4

5 6

See Erwin Dahinden, ‘The Future of Arms Control Law: Towards a New Regulatory Approach and New Regulatory Techniques’, Journal of Conflict and Security Law 10 (2005), 263–277, 264. See Kenneth W. Abbott, ‘“Trust but Verify”: The Production of Information in Arms Control Treaties and Other International Agreements’, Cornell International Law Journal 26 (1993), 1–58. See below, section 2.1. ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, ICJ Reports, 1986, 135.

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1968 NPT; the 1972 Biological and Toxin Weapons Convention (BTWC);7 and the 1993 Chemical Weapons Convention (CWC).8 The latter represents the model for the recent disarmament agreements, which are aimed at eliminating an entire category of weapons by prohibiting the development, production, acquisition, stockpiling, retention, transfer or use of them, and by requiring their destruction. The regular submission of data regarding weapons and materials by the contracting parties constitutes the precondition and the starting point of more intrusive fact-finding means, in order to evaluate States’ compliance with disarmament obligations. Such mechanisms fall within the notion of verification, which is defined as the ‘process covering the entire set of measures aimed at enabling the Parties to an agreement to establish that the conduct of the other Parties is not incompatible with the obligations they have assumed under that agreement’.9 Already the General Assembly had recognized at its first special session on disarmament that the ultimate objective of ‘general and complete disarmament’ could only be achieved ‘under effective international control’.10 Verification regimes constitute essential tools for enhancing transparency: in the absence of an indisputable violation, i.e. the ‘smoking gun’ scenario, they substantially reduce the uncertainty about whether a State is adhering to its obligations. Like any other form of international control over State action,11 a delicate balance of interests needs to be found between the intrusive character of verification measures and the respect for both State sovereignty and State national security, particularly as regards the protection of classified information. Disarmament and arms control agreements may be bilateral or multilateral. While the parties to the former tend to rely primarily on their own national technical means to assess whether the other is in compliance with treaty obligations, multilateral treaties usually entrust an international body, for instance the Organization for the Prohibition 7

8

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Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, 10 April 1972, 1015 UNTS 163. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, 13 January 1993, 1974 UNTS 45. Serge Sur (ed.), Verification of Current Disarmament and Arms Limitation Agreements: Ways, Means and Practices (Aldershot: Dartmouth, 1991), 13. UNGA, Final Document of the Tenth Special Session of the General Assembly, A/RES/ S-10/2, 30 June 1978. See Antonio Cassese, Il controllo internazionale (Milan: Giuffre´, 1971).

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of Chemical Weapons (OPCW) or the International Atomic Energy Agency (IAEA), with the task of conducting verification activities. The issue of institutional transparency emerges in this context, in so far as it involves the decision-making process and the activities of such bodies. The starting point of this analysis is therefore the recognition of two main elements of transparency in the disarmament field: the availability of information about States’ policies and activities, on the one hand; and the openness of the procedures and practice of a disarmament regime vis-à-vis member States and other relevant actors, including civil society, on the other.12 The first transparency process is the result of the interaction between two different methods: information is made available either by the States themselves, which collect and submit relevant data, or through monitoring activities to be conducted by other States or external observers.13 It is also significant that complex verification mechanisms establish a division of labour between national authorities and the international body, as for the control over compliance with treaty obligations. By requiring States to enact implementation measures, these regimes promote transparency at the domestic level too. Finally, it is submitted that in specific cases the objective of transparency can be achieved, irrespective of State consent thereto. This is the case for the coercive regime created by Security Council Resolution 687 (1991), concerning the specific situation in Iraq.

2. Collection of Data as a Tool for Transparency The collection of data regarding both the types and the quantities of a given weapon and related activities conducted by States is the first tool to enhance transparency. The availability of relevant information can be established by different methods: by way of voluntary notifications; through the establishment of arms registers; finally, by imposing a legally binding obligation to provide declarations and reports.

12

13

See Abram Chayes/Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge Mass.: Harvard University Press, 1995), 135. See Ronald B. Mitchell, ‘Sources of Transparency: Information Systems in International Regimes’, International Studies Quarterly 42 (1998), 109–130, 116.

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2.1

Confidence-Building Measures

Confidence-building measures fall within the first category. They can be divided into three broad categories: first, exchange of information about military expenditure, strength of armed forces, production and transfer of arms, and prior notification of military manoeuvres; second, observation measures, like the presence of foreign observers, which allow participating States to monitor each other’s military facilities and activities; finally, military constraint measures, such as limitations on troops movements. They do not strictly constitute a disarmament tool as they are not related to a restriction or ban on any type of weapon. Their objective is to translate certain principles of international law, i.e. the ban on the use of force in international relations, into positive action so as to provide credibility in States’ undertakings.14 Confidence-building measures have usually been negotiated in the context of regional areas and form the object of politically binding arrangements, as is the case with the series of Vienna documents adopted within the CSCE/OSCE process.15 Another example is the system of data exchange measures agreed by the Second Review Conference of the 1972 BTWC in 1986 and later revised at the subsequent conference in 1991.16 Since the BTWC has no verification regime, and being aware of the challenge posed by dual-use technologies, the Review Conference recognized both the lack of transparency measures within the framework of the BTWC and the necessity to find ways ‘to prevent or reduce the occurrence of ambiguities, doubts, and suspicions’ and ‘to improve international co-operation in the field of peaceful bacteriological (biological) activities’.17 As regards the current confidence-building measures, information to be submitted to the BTWC Implementation Support Unit within the UN Department for Disarmament Affairs covers seven different areas, including data on national biological defence research and development programmes, on outbreaks of infectious diseases, and declarations of past activities in offensive and/or

14

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17

Jozef Goldblat, Arms Control: The New Guide to Negotiations and Agreements (London: Sage, 2nd edn, 2002), 10. See OSCE, Vienna Document 1999 of the Negotiations on Confidence- and SecurityBuilding Measures, FSC.Doc/1/99, 16 November 1999. Iris Hunger/Shen Dingli, ‘Improving Transparency’, Nonproliferation Review 18 (2011), 513–526. BTWC, Final Document of the Second Review Conference, Part Two: Final Declaration, BWC/CONF.11/13/11, 30 September 1986, 6.

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defensive biological research and development programmes. The information thus supplied by a State party must not be circulated further without the express permission of that State party.18 A series of parameters have been identified in order to evaluate how the confidence-building measures could be successful in enhancing transparency. The Cold War-era practice demonstrates that the drafting process should be based on gradualism, selectiveness and flexibility:19 imposing the maximum conceivable ‘package’ of notifications at one time should be avoided because this creates the risk of total collapse in the event of a major disagreement on one element of the whole package. Assuming that arms control/disarmament efforts are a continuing process, the preferred option, at the early stages at least, would be to negotiate different ‘baskets’ of issues, which would subsequently form the basis of different confidence-building measures, and to conclude non-binding agreements. In fact analysis of the confidence-building measures submissions in the context of biological disarmament underlines that, whereas their number is increasing, the quality of the data is undermined by irregular participation and incomplete reporting.

2.2

Registers

In order to enhance the effectiveness of data exchange between relevant parties, concrete results have been obtained through the creation of registers. The model is represented by the UN Register on Conventional Arms, which was created by the UN General Assembly Resolution 46/36L, in order to ‘prevent excessive and destabilizing accumulation of arms, (. . .) to promote stability and strengthen regional or international peace and security [and to] enhance confidence, promote stability, help States to exercise restraint, ease tensions and strengthen regional and international peace and security’.20 The UN Office for Disarmament Affairs collects information from States and maintains a database on international arms transfers. The Register originally covered seven military equipment categories: battle tanks, armoured combat vehicles, large-calibre artillery systems, combat aircraft, attack 18 19

20

BTWC, Final Document, BWC/CONF.VI/6, 20 November to 8 December 2006, 22. See Zdzislaw Lachowski, ‘Confidence-building Measures’, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, vol. 2 (Oxford University Press, 2012), 636–643. UNGA, Transparency in Armaments, A/RES/46/36L, 9 December 1991, paras. 1 and 2.

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helicopters, warships, and missiles or missile systems. Not only is universal participation essential for such a system based on voluntary annual reporting, but it is also necessary that the scope of the Register remains relevant. For that purpose, every three years a group of governmental experts undertake a review: in recent years there has been an expansion to include international transfers of small arms and light weapons. A key issue is the future interaction between the UN Register and the reporting mechanisms under the Arms Trade Treaty.21

2.3

A Register for Nuclear Weapons?

Amending the UN Register in order to make it applicable to weapons of mass destruction has been suggested.22 The main challenge is that of nuclear transparency, as an essential step towards nuclear disarmament: the number of warheads and the quantity of fissile materials in the possession of nuclear-weapons States is still not precisely known.23 The initiatives of the Obama administration24 are to be credited for creating a positive momentum in this field, which has facilitated both the conclusion of the new Strategic Arms Reduction Treaty (START)25 and the successful outcome of the 2010 NPT Review Conference. After the failure of the 2005 meeting, the Final Document contains substantive language on the interpretation of article VI; in particular it notes ‘the reaffirmation by the nuclear-weapon States of their unequivocal undertaking to accomplish, in accordance with the principle of irreversibility, 21

22

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See Paul Holtom/Mark Bromley, Implementing an Arms Trade Treaty: Lessons on Reporting and Monitoring from Existing Mechanisms, Stockholm International Peace Research Institute Policy Paper No. 28 (Stockholm: SIPRI, 2011). After long negotiations, the Arms Trade Treaty was finally adopted by the General Assembly on 2 April 2013. See Harald Müller/Annette Schaper, Nuclear Transparency and Registers of Nuclear Weapons and Fissile Materials, Peace Research Institute Frankfurt Report No. 97 (Frankfurt: PRIF, 2010). As regards transparency on the quantity of fissile materials, it is significant that under the ‘Guidelines for the Management of Plutonium (INFCICR/549)’, 1 April 2004, revised 16 August 2005, 16 September 2010, available at: http://isis-online.org, States commit to declare annually the amount of civilian plutonium they have. President Obama chaired a meeting at the Security Council on nuclear security which led to the adoption of UNSC, Resolution 1887 (2009), S/RES/1887 (2009), 24 September 2009 and convened a Nuclear Security Summit in 2010. Treaty between the United States of America and the Russian Federation on Measures for the further Reduction and Limitation of Strategic Offensive Arms, 8 April 2010, available at: www.state.gov.

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the total elimination of their nuclear arsenals leading to nuclear disarmament’.26 In the Action Plan, the nuclear-weapons States ‘commit to accelerate concrete progress on the steps leading to nuclear disarmament, contained in the Final Document of the 2000 NPT Review Conference’. The ‘thirteen practical steps for the systematic and progressive efforts to implement Article VI’ adopted in 2000 include explicit reference to ‘increased transparency by the nuclear-weapon States with regard to their nuclear weapons capabilities and the implementation of agreements pursuant to article VI and as a voluntary confidence-building measure to support further progress on nuclear disarmament’.27 It goes without saying that any real transparency regime should include the activities of the de facto nuclear-weapons States, which are not party to the NPT: India, Israel and Pakistan.28 A final observation relates to the fissile material holdings, principally highly enriched uranium and plutonium. At the 2010 NPT Review Conference it was agreed that ‘the Conference on Disarmament should (. . .) immediately begin negotiation of a treaty banning the production of fissile material’. The content of a Fissile Material Cut-off Treaty should include provisions for increasing transparency in the relevant stockpiles.29

2.4

Declarations

The duty to provide information characterizes the most recent multilateral conventions on disarmament. Article 7 of both the 1997 Ottawa Convention on Anti-personnel Landmines,30 and the 2008 Oslo Convention on Cluster Munitions,31 significantly headed ‘Transparency Measures’, provides that the parties shall submit annual reports to the 26

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2010 Review Conference of the Parties to the Treaty on the Non-proliferation of Nuclear Weapons, Final Document, NPT/CONF.2010/50 (vol. I), 2010, para. 79. 2000 Review Conference of the Parties to the Treaty on the Non-proliferation of Nuclear Weapons, Final Document, NPT/CONF.2000/28 (Parts I and II), 2000, 15. Camille Grand, ‘Nuclear Weapon States and the Transparency Dilemma’, in Nicholas Zarimpas (ed.), Transparency in Nuclear Warheads and Materials: The Political and Technical Dimensions (Oxford University Press, 2003), 32–49, 35. See Annette Schaper, ‘A Treaty on Fissile Materials – Just Cut-off or More?’, in United Nations Institute for Disarmament Research, A Fissile Material Cut-off Treaty: Understanding the Critical Issues (New York/Geneva: United Nations, 2010), 47–59, 55. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Antipersonnel Mines and on their Destruction, 18 September 1997, 2056 UNTS 211. Convention on Cluster Munitions, 3 December 2008, 48 ILM 357.

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UN Secretary-General. They should include information on national implementing measures, stockpiles of the relevant items, locations of contaminated areas, and the status of programmes of stockpile destruction and reconversion. The system of mandatory declarations is, in most cases, the prerequisite for monitoring and verification activities. Declarations are made when a disarmament treaty enters into force, to prove information on the status of the party before the treaty provisions are implemented. Both articles III and VI of the 1993 CWC require States to make various declarations regarding chemical weapons, including the production facilities, and the chemical industry. The Comprehensive Safeguards Agreements concluded by the nonnuclear-weapons States with the IAEA, under article III of the NPT, are the principal sources of States’ obligations to establish a system of accounting for and control of nuclear-weapons-related materials. A 1972 Document adopted by the IAEA Board of Governors,32 which sets out the principles to be included in the Comprehensive Safeguards Agreements, requires the State to maintain a State System for Accountancy and Control of Nuclear Materials. This has two main objectives: a national one, i.e. ‘to account for and control nuclear material in the State and to contribute to the detection of possible losses, or unauthorized use or removal of nuclear material’; and an international one, i.e. ‘to provide the essential basis for the application of IAEA safeguards’.33 The Comprehensive Safeguards Agreements, concluded on the basis of the 1997 Additional Protocol,34 expanded the State’s duty to provide information, beyond the declarations of nuclear materials and associated facilities, to include a wide range of activities of dual-use character, including the manufacture of specially designed components for uranium enrichment, or manufacturing activities which would not normally involve the use of nuclear materials but would be in any case essential for their production.35

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IAEA, The Structure and Content of Agreements between the Agency and States Required in Connection with the Treaty on the Non-proliferation of Nuclear Weapons, INFCIRC/153 (Corrected), reprinted June 1972. IAEA Safeguards, Guidelines for States’ Systems of Accounting for and Control of Nuclear Materials (IAEA/SG/INF/2) (Vienna: IAEA, 1980), 2. See below in the text. Theodore Hirsch, ‘The IAEA Additional Protocol: What It Is and Why It Matters’, Nonproliferation Review 11 (2004), 140–166.

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3. The Transparency Dimension of Verification Three steps characterize any verification process: the gathering of information relating to the fulfilment of disarmament obligations by State parties; the analysis and evaluation of the collected data from a technical and legal point of view; and the assessment of the observance of obligations through the legal examination of the State’s conduct.36 Significantly, the UN Panel of Government Experts on verification in all its aspects refers to verification as ‘a tool to strengthen international security’.37 Verification serves three essential functions: not only to detect evidence of treaty violations, but also to prevent any risk of cheating and to build confidence. In other terms, the very existence of verification mechanisms and procedures should deter violations of a disarmament treaty. A Party does not consider the unilateral advantage of shirking treaty commitments, because it is aware that the benefits deriving from that conduct are outweighed by the costs, including the possible consequences if the activity were detected. In addition, by providing States with clear and timely information about the other parties’ commitment to the disarmament process, verification regimes contribute to improving transparency and predictability, and to reduce the risk of accidental war by avoiding misperceptions. It is important to emphasize that advances in science and technology have fundamentally changed the modalities of data-gathering. Both the information revolution and the circulation of innovative technical means, including access to satellite imagery, have made possible the involvement of other actors in monitoring States’ compliance with disarmament conventions: as a matter of fact, verification organizations are taking advantage of sources made available by civil society. ‘Landmine and Cluster Munition Monitor’ is the best example of an NGO’s initiative providing a de facto monitoring regime for the 1997 Ottawa Convention on Anti-personnel Landmines and the 2008 Oslo Convention on Cluster Munitions.38

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See Michael Bothe, ‘Verification of Disarmament Treaties’, in Giovanni Gasparini/ Natalino Ronzitti (eds.), The Tenth Anniversary of the CWC’s Entry into Force (Rome: Quaderni IAI, 2007), 45–56, 48. UNGA, Verification in All Its Aspects, Including the Role of the United Nations in the Field of Verification, A/61/1028, 15 August 2007, para. 9. See www.the-monitor.org.

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3.1

The Linkage between Verification Techniques and the Nature of Disarmament Obligations

For the purpose of verification, the choice of a specific fact-finding tool is strictly linked to the nature of disarmament and non-proliferation obligations. Whereas the bilateral arms control agreements are characterized by mutual reductions between the superpowers, with a view to a reciprocal interchange of benefits, multilateral disarmament and nonproliferation have been long recognized as containing integral (or interdependent) obligations:39 ‘each party’s performance is effectively conditioned upon and requires the performance of each of the others’.40 The 1963 Partial Test Ban Treaty was recognized as a classic example of such an agreement: its obligations ‘are inextricably interrelated, form an indivisible whole’.41 Special Rapporteur Gerald G. Fitzmaurice had already emphasized that ‘the obligation of each party to disarm (. . .) is necessarily dependent on a corresponding performance of the same thing by all the other parties, since it is the essence of such a treaty that the undertaking of each party is given in return for a similar undertaking by the others’.42 If a State party decides to produce a weapon prohibited under a treaty, it becomes a potential threat to the other parties, which all have a legal interest in compliance. Though occasionally ‘each State Party to the Treaty shall have the right to verify through observations the activities of the other State Parties of the Treaty’,43 multilateral treaties usually provide that each State party may present a request to a competent verification body to assess the consistency of another party’s conduct with disarmament obligations, or even to make a complaint about alleged breaches.44

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The notion was developed by UNGA, Law of Treaties (Agenda Item 2): Second Report by Gerald G. Fitzmaurice, Special Rapporteur, A/CN.4/107, 15 March 1957, paras. 124–126. UNGA, Report of the International Law Commission, A/56/10, 2001, 294, art. 42: commentary. Bruno Simma, ‘From Bilateralism to Community Interest in International Law’, in Recueil des cours 250 (1994), 217–384, 336. UNGA, Law of Treaties (n 39), 1957, para. 126. Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-bed and the Ocean Floor and in the Subsoil Thereof, 11 February 1971, 955 UNTS 115, art. 3(1). See Matthew Happold, ‘The “Injured State” in Case of Breach of a Non-proliferation Treaty and the Legal Consequences of Such a Breach’, in Daniel H. Joyner/Marco Roscini (eds.), Non-proliferation Law as a Special Regime: A Contribution to

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3.2

How Ambiguity Impairs Transparency

Given that a disarmament convention designs verification measures in order to foster transparency and to prevent cheating efforts by States, there is nevertheless a crucial factor which risks undermining the efficiency of such mechanisms. The Trojan horse that makes it easier for States to justify deviations from compliance may be the convention itself, when key substantive obligations are characterized by vague, ambiguous and imprecise provisions. There is little doubt that a degree of flexibility in drafting a treaty text can promote cooperation among the delegations, and indeed it has often been indispensable for the positive outcome of various multilateral negotiations. Although the diplomatic technique of ‘constructive ambiguity’ – the recourse to deliberately ambiguous terminology in order to ‘resolve’ controversial issues – has been successfully employed also in the field of disarmament and arms control,45 it may then become a fault line of the overall regime. There is a correlation between the textual precision of a treaty and the degree of agreement between the negotiators.46 From the viewpoint of an international lawyer, a rule’s determinacy, which denotes its clarity of meaning, remains decisive in the promotion of parties’ transparent conduct, as it decreases cheating by increasing detection.47 The cost, in terms of transparency, of using indeterminate language for key disarmament obligations is manifest with regard to the regulation of riot control agents and incapacitants under the CWC. Although riot control agents are defined in article II as chemicals ‘which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure’, the current policy of certain State parties is to maintain that they do not even fall within the category of chemical weapons,48 for the simple reason that they are subject to the specific provision of article I(5)

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Fragmentation Theory in International Law (Cambridge University Press, 2012), 175–195. Thomas Graham Jr./Blake Mobley, ‘Deliberate Ambiguity in Modern Arms Control and the ABM Treaty’, The International Spectator 36(3) (2001), 19–26. Thomas M. Franck, The Power of Legitimacy among Nations (New York/Oxford: Oxford University Press, 1990), 50. Cf. Emilie M. Hafner-Burtin et al., ‘Political Science Research on International Law: The State of the Field’, American Journal of International Law 106 (2012), 47–97, 75. See US, National Defense Authorization Act for Fiscal Year 2006, HR 1815 (109th), 30 December 2005, section 1232(a): ‘[i]t is the policy of the United States that riot control agents are not chemical weapons’.

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that prohibits their use as a method of warfare. However, the main source of ambiguity is represented by the very same formulation of the ‘General Purpose Criterion’, which affirms the comprehensive character of chemical disarmament: all chemicals are by definition weapons, and therefore subject to the ban, unless they are used in a manner not prohibited by the Conventions. The precise definition of what constitutes a ‘non-prohibited purpose’ becomes crucial.49 But article II(9)(d) defines the most delicate one, which allows the use of chemicals against humans, as ‘law enforcement including domestic riot control purposes’. Such a drafting generated much debate and ambiguity on whether the use of riot control agents is permissible in extraterritorial law enforcement operations, including during armed conflicts and, particularly, whether agents other than riot control agents, including incapacitants targeting the human nervous system, can be lawfully used for such purpose.50 The risk is a renewed interest in the weaponization of chemicals, irrespective of the General Purpose Criterion. The rules of interpretation under the Vienna Convention on the Law of Treaties provide the tools to solve these ambiguities.51 Those who hold that only riot control agents can be used for law enforcement activities under the CWC resort to a systematic and teleological interpretation of article II CWC. In their view, a toxic chemical used by virtue of its toxic properties is only of a type consistent with the purpose of ‘law enforcement’ if it meets the CWC’s definition of a riot control agent.52 Therefore, it would be against the object and purpose of the treaty to interpret its provisions in a manner that legitimizes other anti-personnel toxic chemicals.

4. Remote Monitoring Remote monitoring systems gather data on the forces and activities of another country. The parties of bilateral arms control treaties, i.e. Russia 49

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For similar remarks regarding the BTWC, see Jack M. Beard, ‘The Shortcomings of Indeterminacy in Arms Control Regimes: The Case of the Biological Weapons Convention’, American Journal of International Law 101 (2007), 271–321. A chemical incapacitant was used by Russian authorities during the 2002 Moscow theatre hostage crisis. See recently ECtHR, Finogenov and Others v. Russia, Judgment of 20 December 2011, Applications Nos. 18299/03 and 27311/03. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331. See ICRC, ‘“Incapacitating Chemical Agents”: Implications for International Law – Expert Meeting, Montreux, Switzerland’, 24 to 26 March 2010, available at: www.icrc. org, 44.

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and the US, still rely primarily on their own national technical means. This constitutes the most consolidated tool: most of the agreements signed in the 1950s and 1960s did not provide the parties with access to the territory of the other, or information about the other’s military activities. National technical means were favoured by the development of remote sensing at that time.53 The 1963 Partial Test Ban Treaty prohibits the carrying out of nuclear test explosions in the atmosphere, in outer space, and underwater, but not underground tests: this occurred, in part, because the US and Soviet Union could not agree on the number of on-site inspections they would need to monitor compliance with that prohibition.54 Since the 1970s, the two superpowers have committed not to interfere with the collection of information by the other party. The new START provides that the parties will not ‘use concealment measures that impede verification, by national technical means of verification, of compliance with the provisions of this Treaty’.55 Technical means of monitoring have substantially evolved in recent times, in particular thanks to the advancement of information technology. Nowadays national technical means encompass methods like photoreconnaissance satellites, radar installations, and electronic surveillance capabilities, in order to assess whether the other party is in compliance with the treaty obligations. Monitoring can be exercised at distance also in the context of collective mechanisms: the most comprehensive one is the system envisaged by the 1996 Comprehensive Test Ban Treaty.56 Despite all the efforts to promote the entry into force of the treaty, nine of the forty-four designated ‘nuclear-capable States’ have not yet deposited their instruments of ratification.57 The international monitoring system consists of four networks with different sensor technologies (seismic, hydroacoustic,

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See Steven E. Miller, ‘Arms Control in a World of Cheating: Transparency and Noncompliance in the Post-Cold War Era’, in Ian Anthony/Adam D. Rotfeld (eds.), A Future Arms Control Agenda (Oxford University Press, 2001), 173–189, 178: ‘technological developments made it possible to peer deeply and comprehensively into the territory of other states without their cooperation’. Amy F. Woolf, ‘Monitoring and Verification in Arms Control’, 21 April 2010, available at: http://fpc.state.gov. Strategic Arms Reduction Treaty, 2010 (n 25), art. 10(1)(a). Comprehensive Nuclear Test-ban Treaty, 10 September 1996, 35 ILM 1439. For the US position, see John R. Crook, ‘Vice President Addresses US Nuclear Weapons Policy, Calls for CTBT Ratification’, American Journal of International Law 104 (2010), 297–298.

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infrasound, radionuclide): 337 monitoring stations are installed in more than 90 countries.58

5. On-site Inspections Another fact-finding tool to verify compliance is represented by on-site inspections. These are provided for by both bilateral and multilateral treaties: the 1987 Treaty on the Elimination of Intermediate-Range and Shorter-Range Missiles (INF Treaty) and the 1991 START marked a significant advancement by being accepted as a means to confirm the accuracy of the information shared during data exchanges. But experience has revealed that inspections played a much broader role in ensuring predictability. Also, article XI of the new START confers on the parties the right to carry out such an activity. In the context of multilateral treaties, inspections are usually carried out in the form of institutionalized procedures.59 In principle, they offer several advantages in terms of objectivity and impartiality, as they do not require any prior claim of violation of treaty obligations or the existence of a dispute between the parties. On-site inspections are usually performed as a matter of routine: this avoids the effect of stigmatization that such an intrusive means might generate towards the receiving State.60 Article III of the NPT entrusts an external body, the IAEA, with the task of verifying compliance and in particular detecting diversions of nuclear materials from peaceful uses to the production of nuclear weapons. Each non-nuclear-weapon State concludes a bilateral safeguard agreement with the IAEA, according to the model defined in the document INFCIRC/153: on the basis of the declarations on nuclear materials for peaceful uses, the IAEA staff is engaged in routine inspections of the relevant facilities. In addition, ‘special inspections’ may be conducted if the IAEA considers that information made available by the State 58

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See Martin B. Kalinowski, ‘Comprehensive Nuclear-test-ban Treaty Verification’, in Rudolf Avenhaus et al. (eds.), Verifying Treaty Compliance: Limiting Weapons of Mass Destruction and Monitoring Kyoto Protocol Provisions (Berlin: Springer, 2006), 135–152. See Stefan Oeter, ‘Inspection in International Law: Monitoring Compliance and the Problem of Implementation in International Law’, Netherlands Yearbook of International Law 28 (1997), 101–169. Thilo Marauhn, ‘Dispute Resolution, Compliance Control and Enforcement of International Arms Control Law’, in Geir Ulfstein et al. (ed.), Making Treaties Work (Cambridge University Press, 2007), 243–272, 262.

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concerned is not adequate to ‘obtain access in agreement with the State to information or locations in addition to the access for ad hoc and routine inspections’. The right of access to the sites of a declared facility has been expanded: some one hundred States concluded new agreements, according to the Model Additional Protocol, adopted by the IAEA Board of Governors in 1997.61 At present, the safeguards system should be able ‘to provide credible assurance not only about the non-diversion of nuclear material declared by a State but also about the absence of undeclared material and activities’.62 INFCIRC/540 gives the IAEA the right of ‘complementary’ access to assure the absence of undeclared nuclear material or to resolve questions or inconsistencies in the information a State has provided about its nuclear activities.63 However, the Additional Protocol is far from becoming universal.64 Whereas the BTWC has no formal verification regime, the CWC has established the most effective system of inspections. In addition to routine activities, article IX grants a member State the right to request a ‘challenge’ inspection of any facility, declared or undeclared, on the territory of another State party that the requesting State suspects of a treaty violation. Challenge inspections were conceived to detect illicit facilities, stockpiles and activities that a cheater had deliberately not declared. Various reasons can be found to explain the reluctance of the State parties to use such a radical verification tool, including a lack of confidence in the ability of OPCW inspectors, and the fear of retaliatory challenge inspections.65 Despite the fact that verification mechanisms are of a technical nature, there is a risk that they are considered a substitute for the settlement of political disputes.66 61

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IAEA, Model Protocol Additional to the Agreement(s) between State(s) and the International Atomic Energy Agency for the Application of Safeguards, INFCIRC/540, September 1997. Mohamed El-Baradei, ‘Foreword’, in IAEA, IAEA Safeguards Agreements and Additional Protocols: Verifying Compliance with Nuclear Non-proliferation Undertakings (Vienna: IAEA, 2008), 2. IAEA, Model Protocol, 1997 (n 61), art. 4. Masahiko Asada, ‘The Treaty on the Non-proliferation of Nuclear Weapons and the Universalization of the Additional Protocol’, Journal of Conflict and Security Law 16 (2011), 3–34. See Sergey Batsanov, ‘Approaching the 10th Anniversary of the Chemical Weapons Convention: A Plan for Future Progress’, Nonproliferation Review 13 (2006), 339–353. John D. Hart/Vitaly Fedchenko, ‘WMD Inspection and Verification Regimes: Political and Technical Challenges’, in Nathan E. Busch/Daniel H. Joyner (eds.), Combating

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6. The Role of the Security Council in Promoting Disarmament Transparency The notion of ‘coercive transparency’ has been introduced to describe the Security Council’s action to counter State concealment of weapons of mass destruction.67 The substance of Resolution 687 (1991) is analogous to that of a peace treaty.68 It imposed strict disarmament obligations on Iraq, involving the destruction or removal of all biological and chemical weapons as well as of all ballistic missiles with a range greater than 150 kilometres, and related materials and sites. Moreover, the Security Council decided to establish a system of monitoring and verification based on the work of the United Nations Special Commission for Iraq (UNSCOM), with the cooperation of the IAEA.69 Interestingly, the US provided national technical means-derived information, such as satellite photographs, to UNSCOM.70 There is a fundamental difference between the practice of routine inspections under disarmament treaties and the ad hoc coercive regime established by the Security Council in Iraq: the UNSCOM had the right to designate any site whatsoever for inspection, and to use all the means at its disposal.71 It has been pointed out that while treaty-based inspections are viewed as an opportunity for the parties to demonstrate compliance to each other, in the context of coercive regimes ‘the inspection team is authorized to look for evidence of non-compliance’.72 Although the Security Council failed to fulfil its mandate under article 26 of the UN Charter, the three major weapons of mass destruction treaties recognize it has a role in enforcing compliance. The procedure under the CWC involves the organs of the OPCW, i.e. the Executive Council and the Conference, which, only in cases of particular gravity

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Weapons of Mass Destruction: The Future of International Non-proliferation Policy (Athens: University of Georgia Press, 2009), 95–117, 113. William Walker, ‘Some Reflections on Transparency in the Contemporary Security Environment’, Disarmament Forum 2 (2003), 55–59, 56. Christine Gray, ‘After the Ceasefire: Iraq, the Security Council and the Use of Force’, British Yearbook of International Law 65 (1994), 135–174, 144. Dieter Fleck, ‘Developments of the Law of Arms Control as a Result of the Iraq-Kuwait Conflict’, European Journal of International Law 13 (2002), 105–119. United Nations Institute for Disarmament Research/The Verification Research, Training and Information Centre, Coming to Terms with Security: A Handbook on Verification and Compliance (New York/Geneva: United Nations, 2003), 21. Helene Ruiz Fabri, ‘The UNSCOM Experience: Lessons from an Experiment’, European Journal of International Law 13 (2002), 153–159. Hart/Fedchenko, ‘WMD Inspection’ 2009 (n 66), 99.

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and urgency, may bring the matter directly to the attention of the UN General Assembly or the Security Council. As far as the NPT is concerned, article XII(C) of the Statute of the IAEA provides that the Board of Governors ‘shall report the non-compliance to all members and to the Security Council and General Assembly of the United Nations’. The IAEA reported various cases, including Iraq in 1991, Romania in 1992, Libya in 2004, Syria in 2011, and most notably, North Korea in 2003 and Iran in 2006.

7. Iran’s Nuclear Programme Following revelations which indicated that Iran was building a large underground nuclear-related facility and a heavy water production plant, various reports by the IAEA Director-General noted Iran’s failure to comply with its obligations under the Safeguards Agreement. Since September 2003, the IAEA Board of Governors had called on Teheran to suspend all uranium-enrichment activities73 and to implement a number of transparency measures, including ‘access to individuals, documentation related to procurement, dual use equipment, certain military owned workshops and research and development locations’.74 These measures were not legally binding, although the IAEA Director-General maintained that, if Iran failed to implement them, it ‘[would] not be in a position to progress in its verification of the absence of undeclared nuclear material and activities’.75 After a period of cooperation between 2003 and 2005, Iran announced that it would resume uranium enrichment and cease abiding by the terms of the Additional Protocol, which was signed in 2003 but never ratified. The government of Teheran has always maintained that, notwithstanding its previous failure to respect the reporting requirements, its nuclear activities are in accordance with the NPT substantive provisions, and in particular with article IV, which recognizes the right to peaceful uses of nuclear energy. 73

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IAEA, Board of Governors, Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran, GOV/2003/69, 12 September 2003. IAEA, Board of Governors, Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran, GOV/2005/77, 24 September 2005. IAEA, Board of Governors, Implementation of the NPT Safeguards Agreement and Relevant Provisions of Security Council Resolutions 1737 (2006), 1747 (2007) and 1803 (2008) in the Islamic Republic of Iran, GOV/2008/38, 15 September 2008.

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The decision taken by the IAEA Board of Governor in 2006 to refer the case to the Security Council76 elicited some criticism, since it was deemed premature in the absence of clear evidence on non-compliance with the NPT or the Safeguards Agreement.77 However, the Security Council has since then approved six resolutions imposing both more extensive obligations on Iran and a series of sanctioning measures. Already Resolution 1696 (2006) has demanded that the government of Teheran ‘suspend all enrichment-related and reprocessing activities, including research and development’. In December 2006, Resolution 1737 introduced sanctions designed ‘to constrain Iran’s development of sensitive technologies in support of its nuclear and missile programmes’. It provided for an embargo on the export to and import from Iran of certain goods and technology related to nuclear weapons. Subsequent resolutions of the Security Council strengthened these measures, by introducing inter alia a ban on the export of all arms and related materials from Iran and a ban on the supply of the seven categories of conventional weapons identified in the UN Register on Conventional Arms.78 In Resolution 1929 (2010) the Security Council affirmed that the steps required by the Board of Governors in its resolutions are binding on Iran, including the transparency measures, in so far as they are ‘essential to build confidence in the exclusively peaceful purpose of its nuclear programme’. In addition it recalled the duty to fully comply with the Safeguards Agreement and called upon Iran to act strictly in accordance with the Additional Protocol. There is no doubt that the Security Council did not make Iran a party to this latter instrument; nevertheless it is significant that the obligations set forth in the Safeguards Agreement become binding on Iran not only by virtue of its ratification of the treaty but also because they ‘are made so by mandatory action of the Security Council’.79 While the IAEA continues to verify the non-diversion of declared nuclear material, it asserts that it is unable to provide credible assurance 76

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IAEA, Board of Governors, Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran, GOV/2006/14, 4 February 2006. Daniel H. Joyner, International Law and the Proliferation of Weapons of Mass Destruction (Oxford University Press, 2009), 51. See above, section 2.2. Michael Wood, ‘The Law of Treaties and the UN Security Council: Some Reflections’, in Enzo Cannizzaro (ed.), The Law of Treaties Beyond the Vienna Convention (Oxford University Press, 2011), 244–255, 249.

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about the absence of undeclared nuclear material and activities in Iran, due to a lack of transparency by the Teheran authorities, including the lack of implementation of the Additional Protocol. Therefore, in the report released in November 2011, the IAEA Director-General could not ‘conclude that all nuclear material in Iran is in peaceful activities’.80 But the most controversial aspect is whether the IAEA has acted ultra vires, beyond the mandate assigned to it under its Statute and the Safeguards Agreement with Iran, since the report collects also information regarding ‘activities that are relevant to the development of a nuclear explosive device’, but not directly related to fissionable materials, including highexplosives experiments with nuclear weapons implications, as well as neutron initiation and detonator development.81 Nevertheless, one might argue that the legal basis for the provision of details regarding Iranian nuclear warhead development efforts now lies in the combined effect of the relevant Security Council Resolutions and the Relationship Agreement between the IAEA and the UN, under which ‘the Agency is required to cooperate with the Security Council in the exercise of the Council’s responsibility for the maintenance or restoration of international peace and security’.82

8. National Implementation as a Tool to Promote Transparency at National Level National authorities play a crucial role in guaranteeing transparency. While most of the previous multilateral disarmament agreements did not contain provisions concerning domestic measures, article VII of the CWC imposes on States a general duty of adopting the necessary measures to implement its obligations, and creating national authorities. The importance of national implementation measures as a tool to promote transparency is evident with regard to the chemical industry declarations and inspections regime. As regards control over compliance of such a major industrial sector, article VI of the CWC establishes 80

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IAEA, Board of Governors, Implementation of the NPT Safeguards Agreement and Relevant Provisions of Security Council Resolutions in the Islamic Republic of Iran, GOV/2011/65, 8 November 2011. Cf. Statement by H. E. Ambassador A. A. Soltanieh, Resident Representative of Islamic Republic of Iran to the IAEA Before Board of Governors, Item 4(c), 18 November 2011. See Daniel H. Joyner, ‘Iran’s Nuclear Program and the Legal Mandate of the IAEA’, JURIST-Forum, 9 November 2011, available at: http://jurist.org. IAEA, Board of Governors, GOV/2011/65, 2011 (n 80), 2.

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a division of labour between the national authorities and the verification regime under the mandate entrusted to the OPCW Technical Secretariat. Significantly, some of the basic obligations in article I of the CWC, such as reporting aggregate national data on trade in chemicals to other member States, are currently verified only at the national level. The goal of enhancing transparency at national level is pursued also by Security Council Resolution 1540 (2004), which addresses the threat represented by the use of weapons of mass destruction by non-State actors. Such a decision is aimed at filling the lacunae in both the existing treaties and the export control regimes, due to their focus on horizontal State-to-State proliferation. Its paragraph 2 states that all States must ‘adopt and enforce appropriate effective laws which prohibit any nonState actor to manufacture, acquire, possess, develop, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery’. This implies that States are required to enact ‘specific legislation that also penalizes prohibited activities of non-State actors’.83 Under paragraph 3(a) and (b), States are required to develop and maintain appropriate and effective measures to account for, secure and physically protect materials related to nuclear, chemical and biological weapons. Furthermore, the resolution addresses the problem of the lack of universal standards for trade controls,84 by imposing various binding measures, including the obligation ‘[to] establish, develop, review and maintain appropriate effective national export and trans-shipment controls over [weapons of mass destruction-related] items’.

9. How Much Transparency is Needed? The Role for Confidentiality The overall architecture of transparency measures shows the growing importance of the collection, exchange and storage of data for the implementation of disarmament treaties. Nevertheless, the need to avoid the misuse of information has progressively become crucial. The two main elements of this issue are the protection of State security interests and the safeguard of confidential business information. The

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UNSC, Report of the Committee Established Pursuant to Resolution 1540 (2004), S/2006/257, 25 April 2006, 12. Scott A. Jones/Michael D. Beck/Seema Gahlaut, ‘Trade Controls and International Security’, in Busch/Joyner (eds.), Combating Weapons 2009 (n 66), 118–135, 127.

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former has been the focus of the bilateral arms control agreements concluded by the two superpowers. The 1987 INF Treaty establishes a general rule for the release of information received during inspection activities, by requiring ‘the express permission of the inspecting Parties’.85 The new START reaffirms the discipline of the public disclosure of information already affirmed in the previous 1991 Treaty, based on the principle of the ‘public consultations between the Parties’. It is significant that in the context of the debate on nuclear transparency, which covers both warheads and fissile materials, various reasons have been invoked for maintaining confidentiality in military nuclear inventories: States might prefer to keep information on nuclear-warhead deployments and arsenals secret, and they may fear that its revelation would weaken their own security and their allies’ because it would encourage a first strike and therefore undermine deterrence.86 The verification regimes under both the NPT and the CWC address the challenge of dual-use technologies and therefore cover peaceful civilian activities, including the economic sector. The IAEA Statute commits its staff not to disclose ‘any industrial secrets or other confidential information coming to their knowledge by reason of their official duties for the Agency’.87 The safeguards model agreement included in the document INFCIRC/153 is based on the principle that the IAEA collects ‘only the minimum amount of information and data consistent with carrying out its responsibilities’. It further provides that the Agency ‘shall not publish or communicate to any State, organization or person any information obtained by it in connection with the implementation of the Agreement’:88 information on nuclear material may only be published upon the decision of the Board with the consent of the concerned State.89 Since the Additional Protocol significantly expands the scope of State declarations and introduces complementary access 85

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‘Protocol Regarding Inspections Relating to the Treaty between the United States of America and the Union of Soviet Socialist Republics on the Elimination of their Intermediate-range and Shorter-range Missiles’, 8 December 1987, available at: www. state.gov, section VI. Steve Fetter, ‘Stockpile Declarations’, in Zarimpas (ed.), Nuclear Warheads 2003 (n 28), 129–150, 145. Statute of the International Atomic Energy Agency, 23 October 1956, 276 UNTS 3, art. VII(F). IAEA, Structure and Content of Agreements, 1972 (n 32). Iran has repeatedly protested to the IAEA against the disclosure of confidential information, in breach of its Safeguards Agreement. See IAEA, Communication Dated 8 June

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to sites and facilities, its article 15 requires the IAEA to ‘maintain a stringent regime to ensure effective protection against disclosure of commercial, technological and industrial secrets and other confidential information coming to its knowledge’.90 The text of the CWC too set out general principles of confidentiality relating to the conduct of verification measures by the OPCW and to the protection of confidential information by State parties. This is guaranteed by the combined effects of three factors: the precise definition of the data required; the conduct of the OPCW staff when acquiring the information; and a regime governing the handling of the information by the OPCW Technical Secretariat.91 The Confidentiality Annex elaborates these principles and lays down general procedures in case of a breach or alleged breach of the confidentiality provisions of the CWC.92 Finally, there is a further aspect that challenges transparency, as a value in itself: at the beginning of the twenty-first century, international terrorism, as a threat to international peace and security, requires a new balance to be found between transparency and protection of information. Recent nuclear security initiatives take into account this exigency:93 confidentiality indeed plays a decisive role in enhancing the physical protection of nuclear material and nuclear facilities, as confirmed by the Fundamental Principles of Physical Protection of Nuclear Material and Nuclear Facilities, contained in the 2005 Amending Protocol of the Convention on the Physical Protection of Nuclear Material.94

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2010 Received From the Permanent Mission of the Islamic Republic of Iran to the Agency Regarding the Issue of Confidentiality, INFCIRC/796, 10 June 2010. IAEA, Model Protocol, 1997 (n 61). Walter Krutzsch/Ralf Trapp (eds.), Verification Practice under the Chemical Weapons Convention: A Commentary (The Hague: Kluwer Law International, 1999), 148. See Ettore Greco, ‘Protection of Confidential Information and the Chemical Weapons Convention’, in Michael Bothe/Natalino Ronzitti/Allan Rosas (eds.), The New Chemical Weapons Convention: Implementation and Prospects (The Hague: Kluwer Law International, 1998), 353–378. Andrea Gioia, ‘The International Atomic Energy Agency, Nuclear Security and the Fight against International Terrorism’, Italian Yearbook of International Law 18 (2009), 139–157, 155. IAEA, Board of Governors: General Conference, Nuclear Security – Measures to Protect against Nuclear Terrorism: Amendment to the Convention on the Physical Protection of Nuclear Material, GOV/INF/2005/10-GC(49)/INF/6, 6 September 2005.

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10. Conclusion Transparency plays a crucial role in the field of disarmament and non-proliferation. By decreasing uncertainty regarding States’ conduct, it has a crucial confidence-building function. But it would be simplistic to confine the notion of transparency to confidential exchanges of information between States. The first reason for this is that the traditional paradigm of disarmament, based on negotiated mutual concessions among States, has been increasingly challenged by coercive initiatives aimed at forcing States to comply, by resorting either to the UN Security Council or to unilateral countermeasures. From this perspective of ‘coercive transparency’, inspections are no longer viewed as an opportunity for the parties to demonstrate compliance to each other but as a tool to look for evidence of noncompliance. At the same time, civil society emerges as promoter as well as beneficiary of transparency measures. The crucial role played by NGOs in disarmament law is undeniable. Their participation in law-making processes has resulted in securing adequate publicity for negotiations at diplomatic conferences. Furthermore, they submit policy proposals to the various delegations and provide information about States’ compliance with disarmament obligations. This dynamic contributed to a better understanding of the reasons for transparency: the aim is not only that of building confidence among State parties but also of encouraging democratic oversight and public scrutiny. In the context of disarmament arrangements, the choice among different transparency tools has been influenced by a number of factors, including the nature of the obligations and the activities to be verified; the risks associated with possible non-compliance; the availability of national means of verification; the degree of trust between the parties; the financial impact of the mechanism; and the need to avoid misuse or abuse of verification, with regard to the protection of both national security and commercial confidentiality.95 Experience shows that the need for transparency has to be weighed against other competing interests, in particular financial sustainability and confidentiality. As to the former, one should not overlook that

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Cf. also UNGA, Verification in All Its Aspects, Including the Role of the United Nations in the Field of Verification, A/61/1028, 15 August 2007, para. 12.

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comprehensive verification mechanisms based on independent monitoring bodies may suffer greatly from the current financial crisis.96 As regards confidentiality, the needs of States and industry have been constantly taken into account in the verification regimes, either by limiting the capabilities of monitoring technologies or by preventing the disclosure of gathered data. No definite answer to the question of ‘how much transparency is enough?’ can be found in disarmament law, but it is quite obvious that the design of the verification tools has been aimed, either deliberately or inadvertently, at minimizing access to information unrelated to treaty compliance.97 96

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It is of note that recently several State parties to the CWC have proposed a reduction in the OPCW budget. See e.g. OPCW, Conference of the States Parties, Switzerland – Statement by Ambassador Markus Börlin, Permanent Representative of Switzerland to the OPCW at the Sixteenth Session of the Conference of the States Parties, C-16/ NAT.32, 28 November 2011. Cf. United Nations Institute for Disarmament Research/The Verification Research, Training and Information Centre, Coming to Terms with Security 2003 (n 70), 15.

PART VII Cross-cutting Issues

16 Transparency in International Law-making alan boyle and kasey m c call-smith

1. Introduction In 1919 President Woodrow Wilson famously called for a system of ‘open covenants (. . .) openly arrived at’.1 He may not quite have lived up to his own aspirations,2 but the idea that international law-making should be an open and transparent process has proved a very sturdy implant. This chapter is particularly concerned with transparency as it affects international law-making, both in general and in the various specialized fields covered in other chapters. More specifically, we will consider transparency mainly from the standpoint of multilateral treaty negotiation but the points made here are equally relevant to other forms, including soft-law declarations and resolutions. At the outset it is worth asking why we should examine the principle of transparency in international law-making. At the domestic level there exists an obvious need to justify and legitimize the laws, policies and decisions of public bodies in a democratic State accountable to the electorate. Modern legislatures are transparent insofar as they normally allow some degree of public access, and their proceedings are televized and reported by the press. One writer suggests that transparency has ‘attained quasi-religious significance in debate over governance and institutional design’.3 In this context the role of transparency is to 1

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‘Open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind but diplomacy shall proceed always frankly and in the public view’. Woodrow Wilson, ‘The Fourteen Points’, Speech to Joint Session of Congress, 8 January 1918, para. 1. Meetings of the Supreme Council of the 1919 Paris Peace Conference were held in private, and journalists were excluded. See Margaret MacMillan, Peacemakers (London: John Murray, 2001), 65. Christopher Hood, ‘Transparency in Historical Perspective’, in Christopher Hood/David Heald (eds.), Transparency: The Key to Better Governance? (Oxford University Press, 2006), 3–23, 4.

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contribute to democratic accountability and public participation in governance, while facilitating free speech and freedom of information about law-making and public affairs. On the international level where the interchange is primarily between States and the law-making institutions are not meaningfully democratic, it might be thought that transparency is less necessary; indeed it may even be seen as counterproductive in what is essentially a negotiating process. No negotiator would wish to reveal their position ahead of any dialogue. Some may feel it necessary to conceal their true position even after negotiations have concluded, if only to sustain illusions on both sides. Plainly, there are limits to the utility of transparency and its virtues must be balanced against other potential drawbacks. In politics, as in life, complete openness is rarely beneficial or desirable.4 Nevertheless, even international law-making institutions value the sense of legitimacy that transparency may help to convey. Moreover, even at the domestic level, international law-making benefits from a sense of legitimacy, from some measure of public participation and informed debate, and therefore from greater transparency, if only because governments have to persuade parliaments to ratify treaties and pass the necessary implementing legislation. The functionalist view of transparency visible in national law-making is equally relevant to participation in international law-making: it becomes an indispensable element of legitimacy and accountability. This is partly a consequence of wider participation, but it also reflects a significant change in the way governments and international organizations view their role as international law-makers. Transparency is perceived as an essential ingredient if these institutions are to be made responsive to a wider public. That entails a willingness to facilitate NGO participation, to make information available, and to publish reports and findings. Quite apart from the publicity generated by press reporting and NGOs, international organizations and treaty secretariats put enormous amounts of material into the public domain via websites. We will consider access to information below, but discovering what went on at an international law-making conference is not normally a problem. Law-making by international organizations is sometimes seen as fundamentally undemocratic insofar as it takes power away from elected legislatures, locating it instead in unaccountable institutions where decisions are taken by national representatives insulated from open public 4

David Runciman, Political Hypocrisy (Princeton University Press, 2008).

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scrutiny, and promoting forms of globalization remote from the concerns of ordinary people.5 Such a ‘democratic deficit’ can be partially mitigated by greater transparency and the wider involvement of NGOs and civil society. It is notable, for example that the Global Environmental Facility was restructured in 1994 and 2002 in accordance with principles of ‘universality, transparency and democracy’.6 International institutions have increasingly become, in the words of Jan Klabbers, ‘cardcarrying members of “the audit society”’.7 The more ambitious the law-making remit of an international institution, and the more extensive the transfer of powers away from member States, the more important become the indicators of legitimacy: openness, transparency, participation and democratization. That may entail a greater willingness to broaden participation by civil society, to make the deliberative process more transparent and accessible, and to publish reports and findings.8 This is not a new phenomenon, however. The International Law Commission has to follow what are, in effect, transparency obligations set out in its constitutive instrument.9 Referring to the adoption of draft treaties, article 16(g) provides that: When the Commission considers a draft to be satisfactory, it shall request the [UN] Secretary-General to issue it as a Commission document. The Secretariat shall give all necessary publicity to this document which shall be accompanied by such explanations and supporting material as the Commission considers appropriate. The publication shall include any information supplied to the Commission in reply to the questionnaire referred to in subparagraph (c) above [emphasis added].

Such clarity is unusual, and in most cases, transparency comes about through more indirect means. In this chapter we propose to frame the 5

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The arguments reviewed in Daniel Bodansky, ‘The Legitimacy of International Governance’, American Journal of International Law 93 (1999), 596–624, have general relevance. Global Environment Facility, ‘Instrument for the Establishment of the Restructured Global Environment Facility’, May 2004, available at: www.thegef.org; see generally David Freestone, ‘The Establishment, Role and Evolution of the Global Environment Facility’, in Tafsir M. Ndiaye/Rüdiger Wolfrum (eds.), Law of the Sea, Environmental Law and Settlement of Disputes (Leiden: Martinus Nijhoff, 2007), 1077–1107. Jan Klabbers, An Introduction to International Institutional Law (Cambridge University Press, 2nd edn, 2009), xiv. See for example the UN General Assembly’s role in receiving annual reports from the UN Security Council and other UN organs: UN Charter, art. 15. UNGA, Establishment of an International Law Commission, A/RES/174(II), 21 November 1947 (Statute of the International Law Commission).

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debate around three perspectives on transparency in the process of international law-making: participation; deliberation; and accessibility of information.

2. Participation in the Process of International Law-making ‘States are, at this moment of history, still at the heart of the international legal system’.10 This may be true, but one of the most striking features of modern international law-making is the interaction and participation of States, intergovernmental organizations and NGOs. In this context participation is relevant to transparency for two reasons. First, those who participate on the inside inevitably have a better view of the process than those who remain on the outside. Transparency looks different to an insider. Even if participation comes only through observer status it may be preferable to non-participation. Second, while participation in the law-making process by NGOs is important for various reasons, one of the most relevant is that they often help to open up international negotiating processes and make them more transparent to those on the outside. Anyone wanting to know about the Copenhagen, Cancun and Durban conferences on climate change will almost certainly turn first to information and analysis put out by NGOs who were present at those gatherings. Their function in this respect is rather like that of journalists facilitating the free flow of information and informed debate. Participation is thus one of the instruments that can be used to promote transparency, both within the organization, and in the world outside. Nevertheless, it is a paradox of international law-making that there are few principles or rules governing the question of who should or can participate in its processes, save those put forward in the constitutions of international organizations. What we have is largely a set of practices that have evolved pragmatically over time. First, we can observe that multilateral law-making at the UN is essentially open to all States. In principle, if not always in practice, the UN is universalistic in character. Under the UN Charter all States are entitled to membership, subject to the agreement of the Security Council and the General Assembly.11 They 10

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Rosalyn Higgins, Problems and Process International Law and How We Use It (Oxford University Press, 1993), 39. UN Charter, arts. 3 and 4. The agreement of the UN organs has not always been forthcoming: see ICJ, Competence of Assembly Regarding Admission to the UN, Advisory Opinion, Judgment of 3 March 1950, ICJ Reports, 1950, 4. It may, for example, take some time before Kosovo is admitted.

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enjoy sovereign equality,12 and every State possesses the capacity to conclude treaties.13 UN-convened treaty conferences are normally open to all States unless confined to a specific region.14 So, in principle, is participation in UN treaties.15 Non-participation by States, whether in a UN specialized agency, or a treaty conference, or in the treaty itself, is thus in most cases a matter of choice, not of capacity or qualification.16 For those international organizations most often associated with law-making, their constitutions almost uniformly address participation. The Constitution of the International Labour Organization and the Convention on the International Maritime Organization outline the participation and voting rights of member States, and are broadly inclusive.17 Some global institutions have a more limited membership qualification, however, including the World Trade Organization (WTO). Even today, Russia is not a member, along with thirty other nonparticipants. However, participation as observers remains an alternative option in such cases, albeit without a vote, and the key point is that

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UN Charter, art. 2(1). Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, art. 6. See e.g. UNGA, Resolution 3067(XXVIII), A/RES/3067(XXVIII), 16 November 1973, convening the Third United Nations Conference on the Law of the Sea. Paragraph 7 refers to ‘the desirability of achieving universality of participation in the Conference, to request the Secretary-General to invite, in full compliance with General Assembly resolution 2758 (XXVI) of 25 October 1971, States Members of the United Nations or members of specialized agencies or the International Atomic Energy Agency and States parties to the Statute of the International Court of Justice as well as the following States to participate in the Conference: Republic of Guinea-Bissau and Democratic Republic of Viet-Nam’. UN treaties are normally open to participation by member States of the UN or its specialized agencies ‘and by any other State invited by the General Assembly of the United Nations to become a party’. See Vienna Convention, 1969 (n 13), art. 81; International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171, art. 48; Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, 516 UNTS 205, art. 26; UNGA, Resolution 61/177: International Convention for the Protection of all Persons from Enforced Disappearance, A/RES/61/177, 12 January 2007, annex, art. 38. In some cases there may be political objections from other members precluding participation. For example, Taiwan participates in the WTO and in certain fisheries organizations, but China will not agree to Taiwan’s participation in the UN, UN agencies or UN agreements. UN, International Labour Organization, ‘Constitution of the International Labour Organisation’, 2010, available at: www.ilo.org/public/english/bureau/leg/download/ constitution.pdf, art. 1; Convention on the International Maritime Organization, 6 March 1948, 289 UNTS 49, arts. 5–11.

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observers have much the same view of the process as full participants. They get no vote in the negotiations, but they do have a voice. The example of WTO also shows that participation does not necessarily guarantee internal transparency. Prior to the failed 1999 WTO Ministerial Conference in Seattle, marginalized developing countries and NGOs had voiced discontent over their exclusion from ‘green room’ negotiations by leading, wealthier member States.18 To address apparent inequalities in participation and transparency, efforts were made to assist the least-developed member States of the WTO.19 Recognizing the link between participation and transparency, the Doha Declaration made clear that ‘the negotiations shall be conducted in a transparent manner among participants, in order to facilitate the effective participation of all’.20 Further efforts have been made to improve transparency within the organization,21 and developing countries have gradually developed a stronger voice in trade negotiations.22 Second, we can see that NGOs have become active players in many multilateral negotiations, to such an extent that in some cases the negotiation is largely driven by coalitions of NGOs and States. Kofi Annan confirms the importance of this development: ‘I think it is clear that there is a new diplomacy, where NGOs, peoples from across nations, international organizations, the Red Cross and governments come together to pursue an objective. When we do (. . .) this partnership (. . .) is a powerful partnership for the future’.23 18

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Kent Jones, ‘Green Room Politics and the WTO’s Crisis of Representation’, Progress in Development Studies 9 (2009), 349–357; Mayur Patel, ‘New Faces in the Green Room: Developing Country Coalitions and Decision-Making in the WTO’, September 2007, available at: www.globaleconomicgovernance.org, 57. WTO, Singapore Ministerial Declaration, WT/MIN(96)/DEC, 18 December 1996, paras. 21–22, creating a Working Group on Transparency in Government Procurement which subsequently became defunct following the inability of members to agree a working programme. See WTO, ‘July Decision’ of the General Council, WT/L/ 579, 2 August 2004, para. 1(g). WTO, Doha Ministerial Declaration, WTO/MIN(01)/DEC/1, 14 November 2001, art. 48. For example, WTO, Transparency Mechanism for Regional Trade Agreements, WT/L/ 671, 18 December 2006, paying particular attention to technical support for developing countries. See generally, Patel, ‘New Faces in the Green Room’ 2007 (n 18). NGO Forum on Global Issues, 30 April 1999, cited by William R. Pace/Jennifer Schense, ‘The Role of Non-Governmental Organisations’, in Antonio Cassese/Paola Gaeta/John R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, vol. 1 (Oxford University Press, 2002), 105–143, 105.

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It is this development which makes NGOs such powerful instrumentalities for external transparency in international law-making. Christine Chinkin points out that the relationship between NGOs and the UN is an evolving one. She notes that ‘[t]he language of consultative status or “honoured guests”24 has since shifted to that of “loose creative coalitions”25 and “partnership” at the conceptual, operational and economic levels’.26 A good example is the UN Convention against Torture,27 whose 2002 Protocol was promoted by a coalition of NGOs and likeminded States.28 However, despite the prevalence of NGOs in UN forums, it is difficult to talk in general terms about a ‘right’ to participate. In practice, participation falls within the discretion of each organization or treaty body, and no general principle can be identified.29 In accordance with article 71 of the UN Charter, the Economic and Social Council defines the terms on which NGOs whose mandates are ‘in conformity with the spirit, purposes and principles of the Charter’30 may be accorded consultative status with the UN. Inter alia they must have a democratically adopted constitution, representative structure, appropriate mechanisms for ensuring accountability to members and transparent decision-making processes.31 Different categories of NGO status (general, special and ‘roster’) determine the level of participation.32 24

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UN Special Committee against Apartheid, 2 April 1963, cited in William Korey, NGOs and the Universal Declaration of Human Rights (New York: Palgrave, 2001), 95. Kofi A. Annan, We the Peoples: The Role of the United Nations in the 21st Century (New York: United Nations, 2000), 70. Alan Boyle/Christine Chinkin, The Making of International Law (Oxford University Press, 2007), 53. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85. Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 18 December 2002, 2375 UNTS 237; see Malcolm D. Evans/Claudine Haenni-Dale, ‘Preventing Torture: The Development of the Optional Protocol to the UNCAT’, Human Rights Law Review 4 (2004), 19–55, 19. Boyle/Chinkin, The Making of International Law 2007 (n 26), 57. UN, Economic and Social Council, Resolution 1296 (XLIV): Arrangements for Consultation with Non-Governmental Organizations, E/RES/1296(XLIV), 23 May 1968. UN, Economic and Social Council, Resolution 1996/31: Consultative Relationship between the United Nations and Non-governmental Organizations, E/RES/1996/31, 25 July 1996. Christine Chinkin, ‘The Role of Non-Governmental Organisations in Standard Setting, Monitoring and Implementation of Human Rights’, in Joseph Norton/Mads Andenas/ Mary Footer (eds.), The Changing World of International Law in the Twenty-First

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It is also common for UN specialized agencies to provide for some form of consultative status for non-governmental entities. Some are broader in their approach than others. The United Nations Educational, Scientific and Cultural Organization (UNESCO) Constitution allows the organization to ‘make suitable arrangements for consultation and co-operation with nongovernmental international organizations concerned with matters within its competence, and may invite them to undertake specific tasks’.33 The International Maritime Organization likewise allows a fairly broad spectrum of participation, mainly by industry associations representing shipping companies, seafarers and insurers, but also environmental NGOs.34 Other international organizations have a more restrictive approach to NGO participation, including the International Atomic Energy Agency and the WTO. The WTO does not have a history of openness towards NGOs, and its members tend to take the view that it is not possible for NGOs to become directly involved in the work of WTO bodies. There are some good reasons for this caution, including the opposition of member States,35 but in practice, increasingly large numbers of NGOs, including many trade and industry associations, have been allowed to participate in Ministerial Conferences. There is also increasingly widespread provision for national and international NGOs qualified in relevant fields to be accorded observer status at meetings of treaty parties.36 While again there is no general

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Century: A Tribute to the Late Kenneth R. Simmonds (The Hague: Kluwer, 1998), 45–66, 48–50. Constitution of the United Nations Educational, Scientific and Cultural Organization (UNESCO), 16 November 1945, 4 UNTS 275, art. XI(4) Nicholas Gaskell, ‘Decision Making and the Legal Committee of the IMO’, International Journal of Marine and Coastal Law 18 (2003), 155–214, 172–174; Louise de La Fayette, ‘The MEPC: The Conjunction of the Law of the Sea and International Environmental Law’, International Journal of Marine and Coastal Law 16 (2001), 155–238, 213–216; Alan Khee-Jin Tan, Vessel-Source Marine Pollution (Cambridge University Press, 2006), 34–46. See Jones, ‘Green Room Politics’ 2009 (n 18), ch. 2; Gabriel Marceau/Peter Pedersen, ‘Is the WTO Open and Transparent?’, Journal of World Trade Law 33 (1999), 5–49; Daniel Esty, ‘NGOs and the WTO’, Journal of International Economic Law 1 (1998), 123–148. See e.g. Convention Concerning the Protection of the World Cultural and Natural Heritage, 23 November 1972, 1037 UNTS 151, art. 8(3); Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3 March 1973, 993 UNTS 243 (CITES), art. 11(7); Convention on the Conservation of Migratory Species of Wild Animals, 23 June 1979, 1651 UNTS 333, art. 7(9); Convention on the Conservation of European Wildlife and Natural Habitats, 19 September 1979, 1284 UNTS 209, art. 13(3); Convention for the Protection of the Ozone Layer, 22 March 1985, 1513 UNTS 323 art.

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right to observer status, and some treaties continue to exclude NGOs,37 the usual empowering formulation presumes admission unless at least one third of member States object.38 As Christine Chinkin points out, ‘[t]his last formulation provides a procedural mechanism for resolving any disputed claim to participate. It also shifts the determination away from a conference bureaucracy to the states parties’.39 Unusually, relevant NGOs have a right to take part in the meetings of regional fisheries bodies by virtue of article 12 of the 1995 Fish Stocks Agreement,40 but there is no comparable provision in the 1997 UN Watercourses Convention,41 which also promotes regional agreements. NGOs play an increasingly important role as ‘guardians of the environment’ in the

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6(5); Montreal Protocol on Substances that Deplete the Ozone Layer, 16 September 1987, 1522 UNTS 3, art. 11(5); Basel Convention on Transboundary Transport of Hazardous Wastes and Their Disposal, 22 March 1989, 1673 UNTS 126, art. 15(6); Protocol on Environmental Protection to the Antarctic Treaty, 4 October 1991, 30 ILM 1455, arts. 11–12; Convention on the Protection of the Alps (Alpine Convention), 7 November 1991, 1917 UNTS 135, art. 5; United Nations Framework Convention on Climate Change, 9 May 1992, 1771 UNTS 107, art. 7(6); Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79, art. 23(5); Convention for the Protection of the Marine Environment of the North-east Atlantic, 22 September 1992, 2354 UNTS 67, art. 11; Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, 14 October 1994, 1954 UNTS 3, art. 22(7); International Tropical Timber Agreement, 26 January 1994, 1955 UNTS 81, art. 15; 1995 Agreement on the Conservation of African-Eurasian Migratory Waterbirds, available at: www.unep-aewa.org/, art. 7; 1996 Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area, available at: www.cms.int, art. 3(4). NGO observers have also been admitted to meetings of the parties to the International Convention for the Regulation of Whaling, 2 December 1946, 161 UNTS 72, and the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 29 December 1972, 1046 UNTS 120 and 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 7 November 1996, 36 ILM 1, even though there is no specific treaty provision; see David Victor/Kal Raustiala/Eugene B. Skolnikoff (eds.), Implementation and Effectiveness of International Environmental Commitments (Cambridge Mass.: MIT Press, 1998), chs. 10 and 11. See e.g. the Convention on Nuclear Safety, 17 June 1994, 1963 UNTS 293. See of the CITES, 1973 (n 36), art. 11(7) and Montreal Protocol, 1987 (n 36), art. 6(5), which are the two principal provisions repeated in many later treaties. Boyle/Chinkin, The Making of International Law 2007 (n 26), 56. United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 August 1995, 2167 UNTS 88. United Nations Convention on the Law of the Non-navigational Uses of International Watercourses, 21 May 1997, 36 ILM 700.

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processes of international environmental regulation and supervision.42 This is evident in the presence of many NGOs at the United Nations Conference on Environment and Development in 1992, and in the references to NGOs in Agenda 21.43 Human rights forums also engage with NGOs and their participation has been built into the Human Rights Council’s Universal Periodic Review44 mechanism as well as into periodic reporting mechanisms under the UN human rights treaties. Admittedly, inclusion of NGOs in the treaty supervisory process is tangential to our primary focus here,45 but the growing status of nongovernmental entities across international organizations has decidedly shifted perceptions of transparency. In some cases NGOs have provided an effective public voice because of their freedom from governmental control and their ability to influence public opinion and supranational bodies such as the European Parliament and the Council of Europe.46 NGOs can turn the fear of adverse publicity into a weapon for putting pressure on States to agree stricter standards or ensure better compliance. Transparency and NGO participation can thus be seen as enhancing both the effectiveness of multilateral agreements and the claim of international regulatory institutions to legitimacy in the exercise of their responsibility for aspects of global governance.

3. Deliberative Law-making Processes and Transparency Law-making is normally a deliberative process, in the sense that it entails the drafting and consideration of texts, debate on matters of principle and policy, and the exchange of views. Deliberation is an essential lubricant of any law-making process because it facilitates discussion, 42

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See Philippe Sands, ‘The Environment, Community and International Law’, Harvard International Law Journal 30 (1989), 393–419; Victor/Raustiala/Skolnikoff, Implementation and Effectiveness 1998 (n 36), 664–668; Steve Charnovitz, ‘Two Centuries of Participation: NGOs and International Governance’, Michigan Journal of International Law 18 (1997), 183–286 UN, Report of the UNCED (New York: United Nations, 1993), paras. 27.9, 27.13 and 38.42-43. UN, Office of the High Commissioner for Human Rights, ‘A Practical Guide for Civil Society, Universal Periodic Review’, available at: www.ohchr.org. On the role of NGOs as supervisory support for treaty implementation, see Abram Chayes/Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge Mass.: Harvard University Press, 1998), ch. 6 in particular. E.g. the role of NGOs in promoting the Protocol to the Convention against Torture, 2002; see Evans/Haenni-Dale, ‘Preventing Torture’ 2004 (n 28).

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negotiation, compromise, persuasion, influence and participation. Participants seek to influence the outcome, and it is the process of deliberation which gives them a voice they might not otherwise have, whether or not they also have a vote. Just as importantly, the process of contemporary international law-making has also become generally more transparent than in earlier times. Transparency is not a necessary counterpart to legislative deliberation: it is well-known that the US Constitution was negotiated behind closed doors, with few of the elements of transparency we might expect in the modern world. The Congress of Vienna was no different, although one suspects that a great deal of information leaked out informally at the many dinners, soirées and balls which oiled the wheels of nineteenth-century diplomacy.47 Things have moved on since then, however, and in the modern world it is hard to see how any deliberative law-making process could be regarded as legitimate if it ordinarily proceeded behind closed doors and without any meaningful element of transparency. Deliberation and transparency go together in most law-making processes. Thus, to cite only one example, the more recent Vienna Conference that negotiated the Vienna Convention on the Law of Treaties in 1969 prescribed rules on participation, voting rights and publication, reflecting recognized parliamentary procedures.48 Major treaty negotiations are nowadays very well reported on a daily basis.49 The importance of transparency in the deliberations of international regulatory and law-making bodies is recognized in at least two treaties which lay down general principles. Article 12 of the 1995 Fish Stocks Agreement requires that States ‘shall provide for transparency in the decision-making process and other activities of (. . .) fisheries management organisations’. The 1998 Aarhus Convention similarly commits United Nations Economic Commission for Europe member States to ‘promote the application of the principles of this Convention in international environmental decision-making processes and within the framework of international organisations in matters relating to the environment’.50 While effective diplomacy may dictate that not every 47 48

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Harold Nicolson, The Congress of Vienna (London: University Paperbacks, 1946). UN, Conference on the Law of Treaties: First Session, Vienna, 26 March–24 May 1968, A/CONF.39/11, 1969, xxvi–xxx. See for example the various websites that reported on climate negotiations at Copenhagen, Cancun and Durban in 2010–2011. Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, 25 June 1998, 2161 UNTS 447 (Aarhus

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aspect of an international negotiation can be open and transparent, both of these treaties in effect put the onus of proof on those seeking to maintain confidentiality. In the case of the World Health Organization (WHO), however, effective law-making required a different approach to transparency. In initiating the negotiation of a Framework Convention on Tobacco Control,51 it was thought to be essential to ensure that tobacco industry lobbying could not undermine the negotiations. A Committee of Experts’ report highlighted the extent to which the industry had influenced international policy on tobacco control by diverting attention towards other issues. Their report showed ‘that the tobacco companies planned and implemented global strategies to discredit and impede WHO’s efforts to carry out its mission’.52 To counter these strategies WHO introduced new procedures to ensure transparency and prevent conflicts of interest among staff and others involved in the negotiations. It also held hearings to give the public health community, tobacco farmers and the tobacco industry the opportunity to make their case in public. Doing it this way contributed greatly to the eventual success of the negotiations. Once again, while it is easy to set out the practice, it is harder to identify a generally applicable legal principle underpinning transparency in the deliberative phase of international law-making, or its limits. The UN Charter does not require the UN’s principal organs to proceed in public, and the Security Council does not generally do so. But UN General Assembly proceedings are normally held in open session, and are even televized, and openness is the prevailing pattern for other bodies. Only international courts appear to have any obligation to deliberate publicly, however important the principle may be in other contexts. We are thus left with a conundrum. It is relatively easy to discuss this topic in terms that a political philosopher might begin to recognize. It is much harder to discuss it in terms familiar to an international lawyer.

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Convention), art. 3(7); see Jonas Ebbesson, ‘The Notion of Public Participation in International Environmental Law’, Yearbook of International Environmental Law 8 (1997), 51–97, 57; Panagiotis Delimatsis, ‘Transparency in WTO Decision-making Procedures’, chapter 5 in this volume. WHO Framework Convention on Tobacco Control, 21 May 2003, 2302 UNTS 166. WHO, Response of the D-G to the Report of the Committee of Experts, WHO/DG/SP, 2000.

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4. Access to Information The idea that law must be publicly articulated and made known is an elementary feature of nearly all legal systems. In some legal systems, a law will not be valid or applicable until it is published. Treaties, as we all know, must be registered at the UN and published in the UN Treaty Series,53 so to that extent transparency in this respect is obligatory. That much can be credited to Woodrow Wilson, although non-publication does not invalidate the treaty and has only limited consequences.54 Nevertheless the rule is honoured by near-universal observance. Moreover it is significant that many treaties also provide for reports by the conference of the parties or specialist treaty bodies to be made public, while only a few insist on the maintenance of confidentiality.55 These are the only points at which transparency is hard law. A more difficult aspect of the question is whether a law-making institution that has limited participation and deliberates in private can nevertheless be regarded as transparent if it makes sufficient information about its activities available. The provisional answer has to be yes, but only to the extent that access to all the relevant documentation is afforded, together with records that are necessary for understanding the law made by that body. A good example is the UN Security Council. It has a very limited membership, NGOs do not participate in its meetings, and it usually proceeds in private. In respect of even the limited law-making undertaken by the Council it is hard to say that information about its activities is accessible publicly, except for the resolutions themselves. This is one of the reasons why the Council would not make a good legislator unless reformed in such a way as to make it more inclusive and transparent.56 At present it is questionable whether the unreformed UN Security Council can be said to have the right process to make itself legitimate as a law-making body. Whether viewed in terms of accountability, participation, procedural fairness, or

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UN Charter, art. 102; Vienna Convention, 1969 (n 13), art. 80. See UN Charter, art. 102(2): no party to an unregistered treaty may invoke that treaty before any organ of the UN, including the ICJ. Compare CITES, 1973 (n 36), art. 8(8) (reports of parties to be made public); Protocol to the Antarctic Treaty, 1991 (n 36), art. 11(5) (reports of the Committee on Environmental Protection to be made public), with Convention on Nuclear Safety, 1994 (n 37), art. 27 (reports and meetings to be confidential). On the UNSC, see Antonios Tzanakopoulos, ‘Transparency of the United Nations Security Council’, chapter 14 in this volume.

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transparency of decision-making, it remains a seriously deficient vehicle for the exercise of legislative competence. But the UN Security Council is an exceptional case. In general we can identify widening access to information about international law-making as one of the achievements of the modern UN and other international institutions and treaty bodies. This has a great deal to do with the easy availability of documentation over the internet – a really radical change compared to even twenty years ago. The full travaux preparatoires are now in most cases quickly accessible online, including preparatory documents produced well in advance of any conference or meeting. Nevertheless, ready availability of travaux preparatoires, while a key feature of transparency, does not necessarily give the complete picture of the negotiation process. Here the willingness of participants in negotiations to write about their experience may contribute something additional to understanding the process of law-making, and this should not be underestimated.57 Access to information may serve as a double-edged sword, however. The accessibility of the records of most modern international lawmaking conventions has, on occasion, negatively influenced the outcome of domestic litigation for the party less aware of the potential use of such materials.58 Onora O’Neill argues that the ‘one-sided’ nature of transparency may cause more harm than good: ‘[d]isclosure and dissemination may leave “audiences” unaware that there has been any communication, unable to understand what was communicated, unable to see whether or how it was relevant to them, or (at worst) misinformed or disinformed’.59

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See for example Richard Benedick, Ozone Diplomacy (London: Harvard University Press, 2nd edn, 1998); Irving M. Mintzer/J. Amber Leonard (eds.), Negotiating Climate Change: The Inside Story of the Rio Convention (Cambridge University Press, 1994). For example, see UK House of Lords, Fothergill v. Monarch Airlines Ltd. [1981] AC 251, [1980] 2 All ER 696 (original pursuer, Fothergill, held to interpretation of art. 26(2) of the Convention for the Unification of Certain Rules Relating to International Carriage by Air, 12 October 1929, 137 LNTS 11 (Warsaw Convention) based on the court’s interpretation utilizing the travaux pre´paratoires); US Court of Appeals, Aristedes A. Day et al. v. Trans World Airlines Inc., Decision of 22 December 1975, 528 F 2d 31 (2nd Cir. 1975) (Trans World Airlines held to interpretation of art. 17 of the Warsaw Convention modified by the Montreal Inter-carrier Agreement, 4 May 1966, as minuted in the travaux pre´paratoires reproduced at the second Confe´rence internationale de droit prive´ aerien, 4–12 October 1929, Warsaw 1930). Onora O’Neill, ‘Transparency and the Ethics of Communication’, in Hood/Heald, Transparency 2006 (n 3), 75–90, 89.

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Access to information has had both positive and negative effects. In 2006 the WTO decided to release all General Agreement on Tariffs and Trade documents as ‘a further sign of the WTO’s commitment to transparency’.60 For developing States that may lack a permanent mission at the WTO, timely access to documents has proved a boon. However, this access has also caused alarm for the same States, in response to the flood of NGO responses to documents that may fortify the economic position of wealthier States. Balancing the benefits of internal and external transparency therefore presents a serious challenge to establishing a general principle at the international level when different parties to whom the obligation of transparency might be owed have competing interests. Indiscriminately flooding the public domain with documents for the sake of transparency may also undermine any potential positive effects of access to information. Transparency relating to the fulfilment of treaty obligations presents somewhat different challenges. As noted by Abram Chayes and Antonia Handler Chayes, ‘increased transparency sets up a powerful dynamic for compliance with treaties’.61 A provision for the parties ‘to keep under continuous review and evaluation the effective implementation’,62 or some similar wording, is found in most modern environmental treaties. Effective supervision of the operation and implementation of treaty regimes depends on the availability of adequate information. Most treaties require States to make periodic reports. The extent of this obligation varies, but it will usually cover at least the measures taken by the parties towards implementing their obligations. Information must also usually be provided to enable the parties to assess how effectively the treaty is operating.63 The 1989 Basel Convention requires an annual report on all aspects of transboundary trade and disposal of such 60

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WTO, General Council, ‘WTO Makes Public all Official GATT Documents’, 16 May 2006, available at: www.wto.org, resulting in the release of over 100,000 documents into the public domain. Chayes/Chayes, The New Sovereignty 1998 (n 45), 135. Basel Convention, 1989 (n 36), art. 15; see also Protocol on Pollutant Release and Transfer Registers to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, 21 May 2003, MP. PP/2003/1, art. 17(2); Stockholm Convention on Persistent Organic Pollutants, 22 May 2001, 2256 UNTS 119, art. 16; Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 29 January 2000, 2226 UNTS 208, art. 35; Aarhus Convention, 1998 (n 50), art. 10. See in detail environmental treaty requirements Jutta Brunne´e/Ellen Hey, ‘Transparency and International Environmental Institutions’, chapter 2 in this volume.

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substances, and on ‘such other matters as the conference of the Parties shall deem relevant’.64 The 2001 Stockholm Convention on Persistent Organic Pollutants requires the parties to report on production, import and export of listed chemicals; national inventories must be made public and can be compared.65 The International Law Association attempted to marry transparency principles stemming from the decision-making and implementation phases of law-making in its Recommended Rules and Practice on the Accountability of International Organizations.66 Transparency was viewed as the first principle to observe at the most basic level of accountability for an international organization which maintained a separate legal personality from its member States and often found itself assuming power traditionally exercised by the State: namely, implementation of treaty obligations. Transfer of the power to oversee implementation was viewed as being intimately linked with the availability of appropriate mechanisms to ensure public accountability.67 Access to information is an identifiable legal concept, both as a general principle in many national legal systems, and in international human rights law.68 However, human rights courts have been careful not to confuse access to information with a duty to make information public: there is freedom to impart and receive information, but save in limited circumstances no right of access as such, and no general duty to publish, so the principle is in most situations a very narrow one.69 Moreover, apart from the obligation to register treaties and publish reports, it is doubtful whether the principle of access to information has any direct application to international organizations or treaty bodies: they may 64 65 66

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Basel Convention, 1989 (n 36), art. 13. Stockholm Convention, 2001 (n 62), art. 15. International Law Assosiation, Final Report of the 71st Conference, Berlin 2004 (London: International Law Assosiation, 2004). Ibid., 170. UN, Report of the United Nations Conference on Environment and Development, A/CONF.151/26/Rev.l (vol. l), Rio de Janeiro, 3–14 June 1992, annex I: Rio Declaration on Environment and Development, principle 10; Aarhus Convention, 1998 (n 50), art. 4; ECHR, Öneryildiz v. Turkey, Judgment of 30 November 2004, [2005] 41 EHRR 20, para. 90; ECHR, Guerra v. Italy, Judgment of 19 February 1998, [1998] 26 EHRR 357, para. 60; Maria Gavouneli, ‘Access to Environmental Information’, Tulane Environmental Law Journal 13 (2000), 303–327. See Patrick Birkinshaw, ‘Transparency as a Human Right’, in Hood/Heald, Transparency 2006 (n 3), 47–58; see in detail on relevant case law favouring a right of access Jonathan Klaaren, ‘The Human Right to Information as a Vehicle for Transparency’, chapter 9 in this volume.

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choose to make a great deal of information available, but there is only a limited basis for compelling them to do so.

5. Conclusion Transparency is generally perceived as an important component of legitimacy in law-making processes, both national and international. Any review of the way international organizations and treaty bodies make international law must conclude that these institutions have become genuinely more open and transparent about their practices and procedures, and about the law that they make. At the same time, there is remarkably little identifiable international law underpinning this rather significant constitutional development. It is easy enough to identify the principle that law-making should be transparent and to justify it. It is far harder to translate this conclusion into something an international lawyer can work with. This is, by itself, a remarkable and quite possibly sobering conclusion.

17 Transparency in International Adjudication thore neumann and bruno simma*

1. Introduction International law is said to have entered, during the last decades, both the ‘age of adjudication’ as well as the ‘age of information’.1 On the one hand, the field of international adjudication has been profoundly reshaped by a multitude of new (types of) institutions, the development of existing institutions, the judicialization of new fields of international law and a reinforced interest of litigants in international forums since the 1990s. On the other hand, societal and political phenomena such as the digital revolution and the open government/freedom of information movement have ‘swamped’ domestic as well as international law and institutions and have triggered codification initiatives and ethics statements on access to information. Those two lines of development – the ‘proliferation’ of international courts and tribunals and the ‘information boom’ and its ramifications for domestic and international law and institutions – have not run in detached parallel but have rather cross-fertilized each other: for example, international courts have contributed considerably to the development of the human right of freedom of information.2 Conversely, the technology revolution has made international courts and tribunals ‘virtually palpable’ through websites, case law databases, etc., and has thereby, from the perspective of individuals and domestic voters, contributed to ring in their descent from transnational * We would like to thank Carsten Hoppe for his work on a previous version of this chapter and Anne Peters for her valuable comments and suggestions. All errors and omissions are our own. 1 See Christopher Greenwood, ‘International Law in the Age of Adjudication’, available at: http://untreaty.un.org/cod/avl/ls/Greenwood_CT.html and John K. Gamble, ‘International Law and the Information Age’, Michigan Journal of International Law 17 (1996), 747–799, respectively. 2 See the contribution by Jonathan Klaaren, ‘The Human Right to Information as a Vehicle for Transparency’, chapter 9 in this volume and the concluding chapter by Anne Peters, ‘Conclusion: Towards Transparency as a Global Norm’, chapter 20 in this volume.

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abstractness – arguably an important success and ‘proliferating factor’ and an opportunity for development for international courts. Also, the general ‘upgrading’ of the transparency and openness concepts in domestic and international governance are likely to have fuelled the demand for open – and this traditionally means judicial or quasi-judicial – dispute settlement. The present chapter focuses on the aspect of information on adjudication by mapping the legal rules and practices of international courts on the availability of and third-party access to information on the proceedings before international courts and tribunals, in other words the legal rules and practices for international judicial transparency. In terms of method, we adopt a loosely comparative perspective by juxtaposing the important transparency rules and practices of a small (but in our view representative) selection of international courts, i.e. the International Court of Justice (ICJ), the WTO Dispute Settlement System, the International Tribunal for the Law of the Sea (ITLOS), the International Criminal Court (ICC), the International Criminal Tribunal for the Former Yugoslavia (ICTY), the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR) and the European Court of Justice (ECJ). In sections 2 to 5 we analyse, through the prism of transparency, the four important stages of international proceedings, i.e. the written and oral proceedings, the deliberations and drafting, and the publication of the decisions, judgments and opinions. In section 6, we proffer some observations on core structural hallmarks of international judicial transparency and draw conclusions on the quality and potential of transparency as a common principle of international adjudication.3

2. Access to the Written Proceedings, in Particular the Parties’ Submissions An important aspect of judicial transparency during the written phase of proceedings is the access to court documents, in particular the written parties’ submissions (and annexes), by third parties. Public access to the parties’ submissions primarily serves the specific informational needs of legal professionals and expert observers of international proceedings who wish to follow in detail the arguments and counter-arguments of the parties.4 3

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See generally, on the concept of a ‘common law of international adjudication’, Chester Brown, A Common Law of International Adjudication (Oxford University Press, 2007). UN, Report of the International Court of Justice, 1 August 2010–31 July 2011, General Assembly, Official Records, 66th Session, Supp. No. 4, A/66/4, 11 August 2011, 137.

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However, the broader public can benefit from the general accessibility of parties’ submissions as well, in particular through publications of the media which may want to rely on court documents as primary sources. Public access to court records enables observers to supervise in detail not only how the court itself, but also governments, react to claims brought against them.5 Furthermore, the timely access to parties’ submissions may be a crucial tool for third parties who consider an intervention or – if admissible – who wish to submit an amicus curiae brief.6

2.1

Domestic versus International Access to Pleadings

The legal starting point for the access to documents and in particular the parties’ pleadings lodged before international courts and tribunals can be found both in international and in domestic law.7 This is due to the duplex status of parties’ submissions as, on the one hand, documents prepared by the government of a litigating State which therefore remain under the authority of the respective government and might be governed by domestic freedom of information legislation. On the other hand, parties’ submissions are documents lodged before an international court and are therefore typically subject to international procedural law. As regards international procedural law, the written parties’ submissions at many international courts and tribunals enjoy a certain protection from disclosure, at least while a case is pending.8 Particularly restrictive are the rules at the ECJ and European General Court, where 5

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Nienke Grossman, ‘Legitimacy and International Adjudicative Bodies’, George Washington International Law Review 41 (2009), 107–179, 153. See (in regard to investment arbitration) Joachim Delaney/Daniel Barstow Magraw, ‘Procedural Transparency’, in Peter T. Muchlinski et al. (eds.), The Oxford Handbook of International Investment Law (Oxford University Press, 2008), 721–788, 770–772. See, in the context of the ECJ, Theodor Schilling, ‘Transparenz und der Gerichtshof der EG’, Zeitschrift für Europarechtliche Studien 2 (1999), 75–108, 97: ‘Die Öffentlichkeit von Verfahrensstücken lässt sich nicht nur durch ein Recht Dritter auf Akteneinsicht, sondern (. . .) auch dadurch erzielen, dass den Verfahrensbeteiligten das Recht zur Weitergabe oder Veröffentlichung eigener oder gegnerischer Verfahrensstücke eingeräumt wird’. See also Frank Riemann, Die Transparenz der Europäischen Union (Berlin: Duncker & Humblot, 2004), 195–199, 277–280. For a comparison see also ECJ, Kingdom of Sweden v. Association de la presse internationale ASBL (API) and European Commission, Association de la presse internationale ASBL (API) v. European Commission and European Commission v. Association de la presse internationale ASBL (API), Opinion of Advocate General Poiares Maduro of 1 October 2009, joined cases C-514/07 P, C-528/07 P and C-532/07 P, para. 26.

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parties’ submissions lodged before those courts are generally inaccessible by the public.9 The European General Court grants access to documents only under exceptional conditions, i.e. the applicant must give ‘detailed explanations’ on his/her ‘legitimate interest’ to inspect the file.10 The parties to a case must be heard before an exceptional decision in favour of disclosure may be rendered. Similarly, panels and the Appellate Body of the WTO Dispute Settlement Mechanism are not authorized to publicize the parties’ submissions as the latter ‘shall be treated as confidential’.11 In contrast, at the ICJ, the Court may decide – ‘after ascertaining the views of the parties’ – at the end of the written proceedings, that is ‘on or after the opening of the oral proceedings’, to make (copies of) the pleadings and annexes available to the general public.12 While it appears that the Court need not in all circumstances follow the parties’ wishes in this regard (or wait for them to express them), it has so far never published such materials against the objection of a party.13 In any case, consent by the parties has been given in the great majority of cases. The rules at the ITLOS are less strict in that they provide, inter alia, for the option to make the pleadings accessible even before the beginning of the oral phase (after the views of the parties have been ascertained).14 Also, with the beginning of the oral phase of proceedings, parties’

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See ECJ, Sweden et al. v. API and Commission (n 8), Judgment of 21 September 2010, para. 99: ‘neither the Statute of the Court of Justice nor the (. . .) Rules of Procedure [of the EU courts] provide for any third-party right of access to pleadings’. See also Schilling, ‘Transparenz’ 1999 (n 7), 95 (with further reference). EU, Instructions to the Registrar of the General Court of the European Union, OJ 2007 No. L232/1, 5 July 2007, as amended on 24 January 2012, art. 5(8). See European Court of First Instance (CFI), Association de la presse internationale ASBL (API) v. Commission of the European Communities, Judgment of 12 September 2007, Case T-36/04, para. 87; on a comparison with the ECtHR, para. 84. Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), 15 April 1994, 1869 UNTS 401, art. 18(2) first sentence. ICJ, ‘Rules of Court of the ICJ’, entered into force 1 July 1978, last amended 14 April 2005, available at: www.icj-cij.org (ICJ Rules), art. 53(2). Third states entitled to appear before the ICJ and international organizations in cases concerning the constituent instruments of international organizations or conventions adopted thereunder are somewhat privileged, see ICJ Rules, art. 53(1) and Statute of the International Court of Justice, 26 June 1945, 3 Bevans 1179 (ICJ Statute), art. 34(3), respectively. Stefan Talmon, ‘Article 43’, in Andreas Zimmermann et al. (eds.), The Statute of the International Court of Justice (Oxford University Press, 2nd edn, 2012), 1088–1171, 1122. ITLOS, ‘Rules of the Tribunal’, as amended on 17 March 2009, available at: www.itlos. org (ITLOS Rules), art. 67(2).

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pleadings are made accessible to the public without the need for a decision by the Tribunal or its President.15 Highest on the openness scale ranks the ECtHR where documents including parties’ submissions are prescribed to be made public as a rule.16 Members of the public have to file a reasoned online request, though, and access will in principle only be granted at the Court after a prior appointment.17 With regard to domestic law, the accessibility of documents lodged as parties’ submissions before international courts depends, in the first place, on the scope of the applicable legislation governing access to documents of the administrative branch.18 Many domestic freedom of information laws, as well as the EU’s Transparency Regulation, provide for exemptions as regards information contained in administrative documents pertaining to court records or judicial proceedings;19 in these cases it must be ascertained on the basis of the domestic (or European) freedom of information law whether the respective exemption is also applicable to documents pertaining to proceedings before an international adjudicative institution.20 Furthermore, it is also conceivable that access might be denied on grounds of an ‘international

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Ibid. Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221 (ECHR), art. 40(2); ECtHR, ‘Rules of Court’, as amended with effect from 1 September 2012, available at: www.echr.coe.int (ECtHR Rules), rule 33. ECtHR Rules, rule 33(2) provides for a catalogue of exceptions which mirror the available exceptions to open hearings. Reasoned requests for anonymity regarding both pending and completed cases may be submitted according to the respective ‘Practice Direction’ of 14 January 2010, available at: www.echr.coe.int. See ECtHR, ‘Access to Case Files’, available at: www.echr.coe.int. See on parallel questions in international investment arbitration under NAFTA Delaney/Magraw, ‘Procedural Transparency’ 2008 (n 6), 744–745 (with further references). See, for example, UK, Freedom of Information Act 2000, 2000 c. 36, section 32; Germany, Gesetz zur Regelung des Zugangs zu Informationen des Bundes (Informationsfreiheitsgesetz – IFG), 5 September 2005, BGBl. I S. 2722, § 3(1) lit. g; EU, Regulation (EC) No. 1049/2001 of the European Parliament and of the Council Regarding Public Access to European Parliament, Council and Commission Documents, 30 May 2001, OJ 2001 No. L145/43, art. 4(2) second indent. For example, UK, Freedom of Information Act 2000 (n 19), section 32 is deemed to ‘arguably’ also cover documents in the hands of UK authorities which have been lodged before an international court, John Macdonald QC/Ross Crail/Clive H. Jones (eds.), The Law of Freedom of Information (Oxford University Press, 2nd edn, 2009), para. 5.46. See for EU, Regulation (EC) No. 1049/2001, 2001 (n 19), art. 4(2) second indent the European General Court, Jurašinović v. Council of the European Union, Judgment of 3 October 2012, Case T-63/10, paras. 52–65.

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relations’ exemption.21 Nonetheless, domestic access to parties’ pleadings lodged before an international court may also be influenced by, or depend upon, the respective international procedural rules in cases where freedom of information laws would contravene international procedural rules on the non-accessibility of parties’ submissions at an international court. Otherwise, the respective international procedural rules could be undermined or circumvented by domestic decisions to grant access to pleadings.22 A potential conflict between international procedural law and (domestic) freedom of information laws can be solved in a decentralized fashion either at the domestic level or, centrally, at the international level.23 When access to pleadings is demanded at the domestic level, i.e. before a domestic government, guidance may be sought from the caselaw of the ECJ. In a case involving a Belgium-based journalists’ association, Association de la Presse Internationale (API), which had unsuccessfully demanded access to the Commission’s pleadings, inter alia, in cases which were still pending before the ECJ, part of the latter’s reasoning was that the court proceedings exception according to article 4 (2) second indent Regulation (EC) No. 1049/2001 must be construed in the light of the procedural law of the ECJ.24 It was, inter alia, the fact that there was no third party right of access to parties’ pleadings at the ECJ which entailed that the Commission could invoke article 4(2) second indent Regulation (EC) No. 1049/2001 based on a ‘presumption that disclosure would undermine the court proceedings’, i.e. without having to carry out a detailed content-based assessment of each requested document.25

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See, for example, UK, Freedom of Information Act 2000 (n 19), section 27; in particular para. 1(b), according to which ‘information is exempt information if its disclosure (. . .) would, or would be likely to, prejudice (. . .) (b) relations between the United Kingdom and any international organisation or international court’. In the European context see ECJ, Sweden et al. v. API and Commission (n 9), para. 100; Riemann, ‘Transparenz’ 2004 (n 7), 199 (with further reference). Cf., in the European context, ECJ, Sweden et al. v. API and Commission, Opinion of Advocate General Poiares Maduro (n 8), paras. 13–15, 39 (on whether the question of access to pleadings during pending proceedings should be decided by the Court (and thus on the basis of its procedural law) or by the Commission (and thus on the basis of the EU’s transparency regulation)). ECJ, Sweden et al. v. API and Commission (n 9), paras. 96–102. See on this aspect also Riemann, ‘Transparenz’ 2004 (n 7), 199 (with further reference). ECJ, Sweden et al. v. API and Commission (n 9), paras. 76 and 96–102. See, however, also the case before the European General Court, Jurašinović v. Council (n 20), which

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A procedural law-informed construction of a domestic freedom of information exemption might be an apt conflict avoidance strategy for domestic governments as well when they are faced with requests for access to their pleadings lodged before an international court. However, from the perspective of international courts, the reliance on an international procedural law-friendly interpretation of domestic freedom of information exemptions by domestic authorities may not be a sufficient safeguard against a possible indirect erosion of their nonaccessibility rules because international courts – contrary to the ECJ in cases involving the EU’s Transparency Regulation – cannot control the interpretation of domestic freedom of information regimes by domestic institutions. Also, a solution on the basis of (domestic) freedom of information legislation may not help where domestic laws do require a government to publish its pleadings or where domestic governments voluntarily decide to disclose their pleadings to the public. Domestic access to parties’ pleadings then depends on the controversial question whether international procedural law imposing confidentiality on courts also prohibits the publication of the parties’ submissions by domestic governments themselves.26 In this regard, the legal situation is particularly clear at the WTO Dispute Settlement Mechanism where article 18(2) second sentence DSU explicitly provides that a party may publish ‘statements of its own positions’ at its own discretion, subject to exceptions regarding other members’ information declared ‘confidential’. A panel in Argentina – Poultry Anti-dumping Duties confirmed that the ostensibly limited wording of the provision (‘statements of its own positions’, emphasis added) in fact also covered the publication of entire parties’ submissions and that the disclosure could also take place before the publication of the

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involved a request to the Council for access to documents relating to pending proceedings before the ICTY. According to the European General Court, the Council had grounded its denial of access to the documents exclusively on the fact that according to a consultation of the ICTY by the Council on that matter, the documents were not publicly accessible under the transparency rules of the ICTY. In doing so, the Council had illegally waived its discretion by virtue of EU, Regulation (EC) No. 1049/2001, 2001 (n 19), art. 4(2) second indent to assess whether a disclosure of the repective documents could undermine (international) court proceedings; see paras. 88–90 of the judgment. See on the parallel discussion in international investment arbitration the contribution by Julie Maupin, ‘Transparency in International Investment Law: The Good, the Bad and the Murky’, chapter 6 in this volume as well as the analysis by Christina Knahr/August Reinisch, ‘Transparency versus Confidentiality in International Investment Arbitration – The Biwater Gauff Compromise’, The Law and Practice of International Courts and Tribunals 6 (2007), 97–118.

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panel report.27 The current legal situation at the ECJ is more complex: In the already-mentioned API case, the Court of First Instance (CFI)28 highlighted that the relevant European procedural law, which does not, in principle, provide for the public accessibility of documents held by the EU courts, could not be construed as ‘prohibit[ing] parties from disclosing their own pleadings’.29 The Court referred to an order by the ECJ of 2000, in which the latter had held that ‘[a]part from exceptional cases where disclosure of a document might adversely affect the proper administration of justice, (. . .) the principle is that parties are free to disclose their own written submissions’.30 In its appeals judgment in re API, the ECJ rejected the CFI’s reasoning based, inter alia, on the order of 2000, that the Commission must, after a hearing has taken place, engage in a document-by-document assessment of whether court proceedings might be undermined by a disclosure of its pleadings.31 However, the ECJ did not explicitly address the right of parties to publish their pleadings despite the fact that it had been prominently invited by its Advocate General to reconsider the order of 2000, declare parties’ submissions during pending proceedings outside the ambit of the Transparency Regulation, and establish itself as the sole possible access point for pleadings during pending proceedings.32 It can thus be concluded that from a formal perspective, a publication by the parties of their own pleadings is still possible (the Court did ‘decide the case by reference to [Regulation (EC) No. 1049/2001’]),33 although the right of third parties to request access to such documents from the institutions is considerably limited by the general presumption against disclosure during pending proceedings. Matters are different at the ICJ: for example, in the case of Passage through the Great Belt (Finland v. Denmark),34 the Finnish government 27

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WTO, Argentina – Definitive Anti-Dumping Duties on Poultry from Brazil, Report of the Panel of 22 April 2003, WT/DS241/R, paras. 7.14–7.16. The Court of First Instance was renamed the European ‘General Court’ with the ratification of the Lisbon Treaty in 2009. CFI, API v. Commission (n 10), para. 88. See for an earlier evaluation of this question in the context of the ECJ Schilling, ‘Transparenz’ 1999 (n 7), 97–107. ECJ, Federal Republic of Germany v. European Parliament and Council of the European Union, Order of 3 April 2000, Case C-376/98, para. 10. ECJ, Sweden et al. v. API and Commission (n 9), paras. 68–106. ECJ, Sweden et al. v. API and Commission, Opinion of Advocate General Poiares Maduro (n 8), paras. 13–20, 39. Ibid., para. 39. The case was removed from the list after a settlement of the dispute had been reached between the parties, ICJ, Passage through the Great Belt (Finland v. Denmark), Order of 10 September 1992, ICJ Reports 1992, 348.

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unilaterally granted access to its own pleadings to the media during the written proceedings.35 This in turn led the ICJ’s Registry, upon a letter of complaint by Denmark, to remind the Finnish agent that by dint of the confidentiality of pleadings under article 53(2) ICJ Rules, it was ‘not proper for a party to a case to make open any of its own or its opponent’s pleadings until (. . .) a decision [according to the Rules] has been taken by the Court’.36 Although the letter does not constitute a formal decision by the Court, article 53(2) ICJ Rules is in fact construed as imposing confidentiality also on the parties,37 thereby taking precedence over any rights (or obligations) of governments to publish their pleadings according to their domestic laws.

2.2

Analysis and Evaluation

First, the heterogeneity of the international procedural rules and solutions with regard to the confidentiality of parties’ submissions during pending proceedings can partly be explained by the different legal contexts in which the courts operate. For example, it can be argued that there is no general need or reason for confidentiality of parties’ submissions at the ECtHR because for systemic reasons, most of the details of a case have become public during the preceding domestic proceedings (which must meet the publicity standard of article 6(1) ECHR) anyway.38 This is different where domestic remedies need not be exhausted as a precondition for admissibility, i.e. in the great majority of State-to-State disputes. Beyond these rather practical issues, the differences in the rules and practices as regards the confidentiality of pleadings are due to divergent approaches towards the potential dangers that might result from an (early) publication of pleadings for the sound administration of justice: the ECJ, for example, has underlined that a 35

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Eduardo Valencia-Ospina, ‘Financing, Administering and Making Known the Work of the Court’, in Connie Peck/Roy S. Lee (eds.), Increasing the Effectiveness of the International Court of Justice, Proceedings of the ICJ/UNITAR Colloquium to Celebrate the 50th Anniversary of the Court (The Hague: Kluwer, 1997), 207–232, 216–217. Quoted after Valencia-Ospina, ibid. For an earlier, similar case see a letter by the Registrar in ICJ, Fisheries (United Kingdom v. Norway), Correspondence of 28 September 1949–1 February 1952, vol. IV, 628–629 (No. 21). See Talmon, ‘Article 43’ 2012 (n 13), 1122, citing, inter alia, the Registrar’s letter in the Anglo-Norwegian Fisheries case, ibid. See Tobias Thienel/Nicola Wenzel, ‘Art. 40 EMRK’, in Ulrich Karpenstein/Franz C. Mayer (eds.), Konvention zum Schutz der Menschenrechte und Grundfreiheiten, Kommentar (Munich: Beck, 2012), 571–573, 572 (albeit in the context of open hearings).

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‘[d]isclosure of the pleadings [by the Commission] would have the effect of exposing judicial activities to external pressure, albeit only in the perception of the public, and would disturb the serenity of the proceedings’.39 This justified, according to the Court, the above-mentioned ‘general presumption’ that the publicity of pleadings by the institutions in pending proceedings would harm the latter in the sense of the court proceedings exception in article 4(2) second indent Regulation (EC) No. 1049/2001.40 A similar argument was made by the Registrar of the ICJ in the Fisheries Case (United Kingdom v. Norway): against the background of a ‘leak’ of parties’ submissions to the press before the first hearing and subsequent media requests to the registry, the Registrar explained that the ratio of the confidentiality of pleadings lay in shielding the parties’ submissions from ‘public, perhaps even (. . .) polemical (. . .) discussion before the hearing’.41 In contrast, the perils for the sound administration of justice resulting from the public accessibility of documents are obviously considered low by the ECtHR, given the strikingly restrictive language of the relevant exception in the ECtHR Rules: according to rule 33(2) ‘[p]ublic access to a document (. . .) may be restricted [inter alia] (. . .) to the extent strictly necessary in the opinion of the President of the Chamber in special circumstances where publicity would prejudice the interests of justice’ (emphasis added). Second, the differences, for example, between the ICJ and the WTO dispute settlement mechanism as far as the admissibility under international procedural law of the publication by a party of its own pleadings is concerned, reflect the complexity of the underlying balancing of the sound administration of justice, the need of courts to interfere as little as possible with the sovereignty of the involved States, and the potentially opposed transparency/confidentiality interests of the parties. On the one hand, one could argue that a State should always decide for itself if it wants to publish its pleadings or not. It may best know for itself if and when it should refrain from publishing its pleadings lest the sound administration of justice is not impeded to its own detriment: it may opt for confidentiality in politically sensitive cases when it has particular reason to expect public controversies and concomitant pressure on its legal staff and the court. It might also opt for confidentiality if it is 39 41

ECJ, Sweden et al. v. API and Commission (n 9), para. 93. 40 Ibid., para. 94. ICJ, Fisheries (United Kingdom v. Norway) (n 36), 629, cited also by Venkateshwara S. Mani, International Adjudication, Procedural Aspects (The Hague: Martinus Nijhoff, 1980), 152.

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specifically interested in leaving the door open for friendly settlements.42 Furthermore, leaving the decision to the domestic governments enables those to comply with domestic rules and values of governmental openness – a matter which pertains, in principle, to the domestic jurisdiction of a State.43 Governmental openness is traditionally linked to concepts of democracy and the rule of law. Its implementation by domestic governments should in principle not be undermined by international courts, especially since the legal relationship between international courts and their member States is based on general mutual obligations of due respect and cooperation. On the other hand, leaving the decision to publish one’s own pleadings to the States might also entail that due to different legal standards on freedom of information, one State is bound by domestic legislation to open its pleadings to the public while the other State is free to retain confidentiality.44 This would not only lead to a disbalance between the parties and to an infringement upon the principle of equality of arms,45 but possibly also to discrimination as regards the access to information of court observers from the State which insists on confidentiality. Furthermore, as has become relevant in particular in the context of international investment arbitration, an option for publicity might be used by a party for political reasons, i.e. to deliberately influence the public mood in one’s own favour.46 An early publication of pleadings may be – independently of the quality of the actual legal arguments – a powerful instrument of ‘litigation-PR’, because it facilitates the work of media and 42

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In the European context, this is of particular importance in court proceedings in infringement cases, see CFI, API v. Commission (n 10), para. 121 (with further reference). See also Knahr/Reinisch, ‘Transparency versus Confidentiality’ 2007 (n 26), 110. See the position of Finland in the above-mentioned affair in the case of ICJ, Passage through the Great Belt (Finland v. Denmark) (n 34) as reported by Valencia-Ospina, ‘Making Known the Work of the Court’ 1997 (n 35), 216. See also ICSID, Biwater Gauff (Tanzania) Limited v. United Republic of Tanzania, Procedural Order No. 3 of 29 September 2006 Concerning the Claimant’s Second Request for Provisional Measures, ICSID Case No. ARB/05/22, para. 150 (albeit not in the context of a publication of pleadings but of a general discussion of the case in public). See, albeit in the context of the European Commission and the EU Transparency Regulation, ECJ, Sweden v. API and Commission et al. (n 9), para. 86–91; CFI, API v. Commission (n 10), para. 78–79. Ibid. Knahr/Reinisch, ‘Transparency versus Confidentiality’ 2007 (n 26), 106 (discussing ICSID, Biwater Gauff (n 43)). In the European context ECJ, Sweden et al. v. API and Commission, Opinion of Advocate General Poiares Maduro (n 8), para. 14 and Schilling, ‘Transparenz’ 1999 (n 7), 103.

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academic observers and might simply for that reason attract public support in favour of the respective litigant’s cause. At the same time, the unilateral publication of the pleadings stigmatizes the other party as ‘secretive’ and de facto compels it to follow suit. This, in turn, might practically thwart any freedom to opt in favour of confidentiality or lead to an uncontrolled ‘race to the open’. It could even be argued that a State’s sovereignty encompasses a right of ‘informational self-determination of the state’ in the international realm which could be undermined by an indirect pressure to publish one’s own pleadings in reaction to the publication on the part of the other party, provided that the non-publication would in fact lead to significant political disadvantages.47 Against this background and in very general terms, a synchronization of the publication of pleadings through international procedural rules – i.e. either through a general rule of preliminary confidentiality with an option for a contrary decision based on an agreement between the parties48 or indeed through a general rule of openness – appears reasonable.

3. Access to the Oral Proceedings The public accessibility of oral hearings adds a further element of transparency to the work of most international courts and tribunals. Although the oral conduct of hearings primarily serves pivotal ends in its own right, it also has a district relevance for transparency: (Listening to) the verbal repetition of (legal and factual) arguments in concise presentations as well as the (possible) questioning of parties by the court enables both observers and participants to (re-)aquaint themselves with the process matter through an alternative, i.e. audio-visual, mode of communication.49 Furthermore, the ‘event character’ and dramatic potential50 47

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Furthermore, as had been argued by the Commission in the API case, the publication of its own pleadings would – due to inevitable cross-references – lead to the publication of information contained in the other party’s pleadings – possibly contrary to the other party’s will. See ECJ, Sweden et al. v. API and Commission (n 9), para. 52. See the ICJ’s Registrar’s letter in ICJ, Fisheries (United Kingdom v. Norway) (n 36). See also ICSID, Biwater Gauff (n 43), para. 163b; Knahr/Reinisch, ‘Transparency versus Confidentiality’ 2007 (n 26), 107 and 116. Cf. ECJ, Sweden et al. v. API and Commission, Opinion of Advocate General Poiares Maduro (n 8), paras. 16, 30. See also, in the context of criminal trials, Christoph Safferling, International Criminal Procedure (Oxford University Press, 2012), 400. Richard Posner, Law and Literature (Cambridge Mass.: Harvard University Press, 3rd edn, 2009), 33; Jessica Feinstein, ‘The Hybrid’s Handmaiden: Media Coverage of the Special Court for Sierra Leone’, Loyola University Chicago International Law Review 7 (2010), 131–161, 132 (referring to Hannah Arendt).

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as well as the possible option for audio-visual coverage are likely to attract broader international media attention than mere written proceedings.51 Against this background and independently of whether the facts and arguments of a case might be accessible by the public via other means (i.e. public access to the written pleadings), it may be considered detrimental to the cause of transparency that oral hearings are not always mandatory at every international court52 or that the number of, or time for, oral hearings may be limited due to considerations of efficiency.53

3.1

Public Accessibility of Hearings

Once oral hearings are held, their accessibility by the different stakeholders, and in particular by the public at large, comes into focus. Depending on parameters such as (1) the degree of influence parties retain over the admittance of external observers to the proceedings and (2) the discretion enjoyed by courts to order closed hearings, the normative solutions found in the governing texts of the different courts and tribunals can be grouped into three broad categories which provide for varying increments of transparency. First, the least ‘de-iure-transparent’ are obviously judicial bodies such as the WTO Dispute Settlement Mechanism which as a default rule exclude the public from hearings or sessions. In such cases, both parties (and third party participants) must give their explicit consent to any exceptions in favour of transparency and the burden of initiative for openness rests with the parties.54

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Jo M. Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights (Cambridge University Press, 2nd edn, 2013), 159–161, also with reference to James L. Cavallaro/Stephanie Erin Brewer, ‘Reevaluating Regional Human Rights Litigation in the Twenty-First Century: The Case of the Inter-American Court’, American Journal of International Law 102 (2008), 768–827, 802–803. See in the domestic context also Tobias Gostomzyk, Die Őffentlichkeitsverantwortung der Gerichte in der Mediengesellschaft (BadenBaden: Nomos, 2006), 142–146. See in the context of the ECtHR Corneliu-Liviu Popescu, ‘La cour européenne des droits de l’homme’, in Hélène Ruiz Fabri/Jean-Marc Sorel (eds.), Indépendence et impartialité des juges internationaux (Paris: Editions A. Pedone, 2010), 39–136, 61–63 (also with pointed criticism of the ECtHR’s practice of seldom conducting oral hearings from the perspective of the parties). See in the context of the IACtHR in detail Cavallaro/Brewer, ‘Reevaluating Regional Human Rights Litigation’ 2008 (n 51), in particular at 802. On the transparency of the WTO Dispute Settlement System see in detail Panagiotis Delimatsis, ‘Institutional Transparency in the WTO’, chapter 5 in this volume.

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This is contrary to the second, ‘intermediate’ category which comprises courts where the rule-exception-structure is inverted but where the parties, at least theoretically, retain considerable influence on the question whether hearings are open to the public or not. At the ICJ and the ITLOS, the public is generally allowed to attend the hearings ‘unless [1] the Court [or the Tribunal] decides otherwise or [2] the parties demand that the public be not admitted’.55 The unqualified option for the parties to file a motion to have the public excluded according to the second alternative is a rare particularity of the ICJ and ITLOS. It comes close to an optional arbitral procedural element in the ICJ’s/the ITLOS’s procedural law which enables sovereignty-conscious parties to eschew putative public compromising and an appearance of political subordination in a given case, or which might be invoked to protect simultaneous diplomatic efforts to resolve a conflict. The provision is not a serious impediment to transparency, though, because the parties may not unilaterally request closed sessions under the second alternative of article 46 ICJ Statute.56 This is made particularly clear by the French wording of the provision which reads: ‘ou que les deux parties ne demandent que le public ne soit pas admis’ (emphasis added). Since, in a considerable number of contentious cases, at least one party will have a particular – politically motivated – interest in public proceedings, the consensus requirement sets the bar high for a closure of hearings under that part of the provision. Indeed, parties at the ICJ have seldom invoked their procedural option to have the public excluded.57 This may also be due to the fact that the decision to refer a dispute to the ICJ, as opposed to institute proceedings before an arbitral tribunal, already implies the acceptance of the generally public character of the proceedings. The respective rules of international criminal courts, international human rights courts such as the ECtHR and the IACtHR, as well as the ECJ, can be summarized in a third category, where hearings are open to the public without a general, unqualified option for the parties to have it 55

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ICJ Statute (n 12), art. 46; see also ICJ Rules (n 12), art. 59 first sentence; for the ITLOS: United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3, annex VI: Statute of the International Tribunal for the Law of the Sea (ITLOS Statute), art. 26(2); ITLOS Rules (n 14), art. 74 first sentence. Sabine von Schorlemer, ‘Article 46’, in Zimmermann, ICJ Statute 2012 (n 13), 1197–1206, 1201. See on the ICJ’s practice of ordering closed hearings von Schorlemer, ‘Article 46’, 2012 (n 56), 1202–1204.

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excluded.58 As regards the discretion or margin of appreciation enjoyed by courts of this category in ordering closed hearings under their procedural regimes, two sub-categories can be formed: first, the statutes and/ or rules respectively of the ECtHR and the ICTY, ICTR and ICC contain more or less similar categories of exceptions59 which resemble those of many domestic courts. As regards the enumerated reasons for closed hearings at the ECtHR, rule 63(2) ECtHR Rules repeats article 6(1) second sentence ECHR near-verbatim. The fact that the ECtHR is explicitly bound by an equivalent procedural standard on open hearings as is imposed by the Convention on the member States for their courts greatly adds to the credibility and consistency of the charter regime. Second, at the ECJ and the IACtHR, the relevant provisions in the statutes provide that ‘serious reasons’ or ‘exceptional circumstances’ respectively may justify excluding the public and these courts have not, or only marginally, further concretized these provisions in their procedural rules. At the IACtHR, the provision in the Rules of Procedure which corresponds to the statutory provision on open hearings was amended by the Court in 2009: whereas the old article 14(1) second sentence Rules of Procedure (2003)60 repeated the ‘exceptional circumstances’ requirement of article 24(1) IACtHR Statute, article 15(1) second sentence Rules of Procedure (2009) appears more flexible by stating that hearings are held in private when the ‘[t]ribunal deems [this] appropriate’. It remains to be seen whether this amendment has laid the foundation for a change in the IACtHR’s traditional practice of seldom ordering closed hearings,61 to the detriment of transparency. A 58

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Statute of the International Criminal Tribunal for the Former Yugoslavia, adopted by UNSC Resolution 827 (1993), S/Res/827 (1993), 25 May 1993, 32 ILM 1159, as amended in September 2009 (ICTY Statute), art. 20(4) and art. 21(2); Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90 (ICC Rome Statute), arts. 64(7) and 67(1); ICC, Regulations of the Court, ICC-BD/01–03–11, as amended on 2 November 2011 (ICC Regulations), regulation 20(1); ECHR (n 16), art. 40(1); ECtHR Rules (n 16), rule 63(1); Statute of the Inter-American Court of Human Rights, adopted in October 1979, OAS Resolution 448 (IACtHR Statute), art. 24(1); IACtHR, ‘Rules of Procedure’, as amended in November 2009, available at: www.corteidh.or.cr (IACtHR Rules), art. 15(1) second sentence; EU, Statute of the European Court of Justice, Protocol No. 3 to the Treaty on European Union and the Treaty on the Functioning of the European Union, OJ 2010 No. C83/01, 30 March 2010 (ECJ Statute), art. 31. See also the comparison by von Schorlemer, ‘Article 46’ 2012 (n 56), 1205–1206 and Safferling, International Criminal Procedure 2012 (n 49), 392–396. Available at: www.corteidh.or.cr/sitios/reglamento/2003_eng.pdf. See Pasqualucci, IACtHR – Practice and Procedure 2013 (n 51), 161 and the first edition of this work (Cambridge University Press, 2003), 196.

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trend towards more detailed provisions has materialized at the ECJ, where the relevant article 31 ECJ Statute is now complemented by a new article 79(1) ECJ Rules of Procedure.62 However, the new norm, which lists the security of member States and the protection of minors as examples of ‘serious reasons’ in the sense of article 31 ECJ Statute, is less intended to restrict the Court’s leeway in ordering closed sessions rather than to provide guidance to external ‘users’ of the Court, i.e. litigants and/ or domestic courts, and to enhance the norms transparency of the ECJ’s procedural law on hearings.63 It does not change the rules on public hearings of the ECJ in their substance. An overarching limit to the discretion or – in cases of enumerative exception-regimes – the margin of appreciation enjoyed by international courts of the ‘categories two and three’ (including the ICJ and ITLOS) to exclude the public is – despite the general procedural autonomy of international courts – the proportionality principle to the extent that the latter forms part of general international law (or EU law, respectively). The proportionality principle requires in particular that the respective courts must pursue a legitimate aim when closing proceedings. Where no explicit catalogue of reasons for closed proceedings exists (i.e. at the ICJ), courts could seek first guidance from the relevant provisions of the ECtHR or international criminal courts (however, there might also be additional or distinct legitimate reasons for secrecy at other courts than the ECtHR or criminal courts, i.e. the protection of parallel diplomatic negotiations, etc.).64 Furthermore, when closing proceedings to externals, the respective courts must ensure that the general public’s right to follow the proceedings is restricted as little as possible. Minimizing (exceptional) confidentiality along the lines of the necessity requirement (as part of the proportionality principle) has been particularly important at international criminal courts and a considerable corpus of respective case law exists, for example, at the ICTY.65 However, the necessity requirement is arguably also reflected, for example, in article 59 second sentence ICJ Rules and rule 63(2) ECtHR Rules: these provisions clarify that the ICJ/ECtHR may exclude the public also

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EU, Rules of Procedure of the Court of Justice, OJ 2012 No. L265/1, 25 September 2012 (ECJ Rules). EU, ‘Draft Rules of Procedure of the Court of Justice’, 25 May 2011, available at: http:// curia.europa.eu/jcms/upload/docs/application/pdf/2011-05/en_rp_cjue.pdf, 58; Introductory Explanatory Notes, 2 and 3. Ibid. 65 See Safferling, International Criminal Procedure, 2012 (n 49), 392–394.

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from parts of the hearings and thereby explicitly enable those courts to comply with their obligations emanating from the general proportionality principle. As regards the proportionality strictu sensu, even where the statutes prima facie provide for a broad discretion (such as in the cases of the ICJ66 and ITLOS), the courts must balance confidentiality-related interests of the parties and the interest of the court itself in an unobstructed administration of justice against the interests of the public to follow the proceedings. In particular, this requires an assessment of the actual public discussion of a case and of the impacts of closed hearings on constituencies and specific stakeholders. Inter alia, courts should take into account whether alternative options exist for the public to follow the concrete proceedings,67 i.e. whether the public has timely access to the (possibly redacted) parties’ submissions, transcripts, press summaries, etc. Courts should also pay heed to the specific transparency benefits of open oral hearings and consider the communicative preconditions and information infrastructure in affected States and communities68 (i.e., open hearings are particularly important in cases involving States with a high degree of illiteracy among the population and where information is frequently spread via radio broadcasts).69 Furthermore, international courts should mind the fact that they are, as international institutions with complex mandates and jurisdictions, actually and conceptually more ‘aloof’ from the individuals they eventually serve than domestic courts: in order to maintain public trust and confidence in their work, it may be particularly helpful in international adjudication if judges and other court personnel ‘show themselves to the public’ through open hearings as often as possible.70 Finally, as a consequence of general proportionality principle, all courts and tribunals of ‘categories two and three’ should publicly state the reasons for confidentiality orders (except for situations in which confidentiality would be compromised, but even then, that very fact should be explained to the public), even if this is not explicitly required 66 67

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Von Schorlemer, ‘Article 46’ 2012 (n 56), 1201. See also, in the context of international criminal courts, Safferling, International Criminal Procedure 2012 (n 49), 396. See generally Gostomzyk, Öffentlichkeitsverantwortung 2006 (n 51), 114. See generally, ICC, ‘Summary of the Integrated Strategy for External Relations, Public Information and Outreach’ (the Integrated Strategy itself is an internal Court document), available at: www.icc-cpi.int, 4; Feinstein, ‘Hybrid’s Handmaiden’ 2010 (n 50), 142. See Popescu, ‘La CEDH’ 2010 (n 52), 62 (from the perspective of the parties).

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by the respective statutes, rules or regulations.71 This type of ‘metatransparency’ (see section 6.1.2) may be a key aspect in generating acceptance for frequently unpopular confidentiality orders.

3.2

Audio-visual Media and International Public Process

A controversial aspect both in domestic72 and international adjudication has been the admission of audio-visual recordings during hearings. Specific policy aspects have been identified which prima facie and in principle militate in favour of a positive approach towards televized (or radio-broadcast) international justice:73 audio-visual media may compensate for the frequently existing geographical distance between courts and affected populations,74 and thereby alleviate to a certain degree concomitant access-to-information inequalities.75 It may also enable illiterate persons to follow the proceedings.76 International courts typically decide highly politicized cases which generate a particularly strong public interest. Furthermore, the collective catharsis function ascribed to the publicity of proceedings,77 which plays an important role in international criminal 71

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See on this aspect also von Schorlemer, ‘Article 46’ 2012 (n 56), 1201 and 1206, who rejects such an obligation for the ICJ and appears to opt in favour of an obligation to state the reasons for confidentiality only where the relevant statutes or rules explicitly say so, i.e. in the case of the ICTY (see ICTY, Rules of Procedure and Evidence, IT/32/ Rev. 48, as amended on 19 November 2012 (ICTY Rules), rule 79(B)), and generally Grossman, ‘Legitimacy’ 2009 (n 5), 128 (with n 101). See also ICC Regulations (n 58), regulation 20(2): ‘[w]hen a Chamber orders that certain hearings be held in closed session, the Chamber shall make public the reasons for such an order’. See, for example, Christian von Coelln, Zur Medienöffentlichkeit der Dritten Gewalt (Tübingen: Mohr Siebeck, 2005), in particular 299–482. See for example Paul Mason, ‘Court on Camera: Electronic Broadcast Coverage of the Legal Proceedings’, available at: http://usf.usfca.edu/pj/camera-mason.htm, with reference to a study conducted at the ICTY on the audio-visual coverage of the ICTY’s proceedings; Sofia Plagakis, ‘Webcasting as a Tool to Increase Transparency in International Dispute Settlement Proceedings’, June 2010, available at: www.ciel.org/ Publications/Webcasting_21Jun10.pdf. ICC, Assembly of State Parties, Strategic Plan for Outreach of the International Criminal Court, ICC-ASP/5/12, 29 September 2006, para. 51. See also, e.g., Pasqualucci, IACtHR – Practice and Procedure 2013 (n 51), 23–24. Lothar Ehring, ‘Public Access to Dispute Settlement Hearings in the World Trade Organization’, Journal of International Economic Law 11 (2008), 1021–1034, 1031. See generally on illiteracy in stakeholder societies as a ‘challenge’ for court communication, ICC, ‘Integrated Strategy’ (n 69), 4. The notion of public trial as ‘community catharsis’ has been famously endorsed by the US Supreme Court, Richmond Newspapers, Inc. v. Virginia, Judgment of 19 February 1980, 448 US 555 (1980), 556, 571.

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justice but also in adjudication on other large-scale military and social conflicts, is furthered more by the immediacy and concreteness of audiovisual communications than by written court reports.78 It is thus not surprising that nowadays, many international courts and tribunals provide for audio-visual streams of hearings via the internet.79 These are often delayed in order to allow for on-the-fly corrections for the protection of confidentiality issues, a measure which is in most cases not necessary for broadcasts of the public reading of a judgment80 and should thus be limited to the broadcasts of hearings during oral proceedings. The widened publicity through court-own sounds and pictures is constructed as an extension of the immediate on-site publicity of the hearings81 and can thus be legally based on the statutory provisions which regulate the publicity of hearings. However, despite the emerging common practice in this regard, international courts do not deem themselves obliged to provide webcast hearings,82 even though their statutes in most cases provide for the publicity of hearings in an unqualified fashion. For example, regulation 21(1) ICC Regulations, which governs non-physical access to the oral proceedings, merely states that hearings ‘may’ be broadcast by the registry. Also, the ICJ has stated that it provides for video streams in cases which are accompanied by a particularly strong public interest.83 This connotes, that de iure, the Court decides on the arrangement for webstreams on a case-by-case basis and without the intention to be legally bound. Only the IACtHR’s explanation of its decision to implement regular live streaming of hearings could point towards a respective opinio iuris at least at that Court: the Court stated that ‘[t]he purpose [of live streams] is to implement the 78

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Feinstein, ‘Hybrid’s Handmaiden’ 2010 (n 50), 134–135 (referring, inter alia, to US Supreme Court, Richmond Newspapers (n 77), 571). On the different aspect of a potential individual relief through testifying (in the context of the ICTY) Eric Stover, The Witnesses: War Crimes and the Promise of Justice in The Hague (Philadelphia: University of Pennsylvania Press, 2005), 87–90. For an overview and analysis of the practice see Plagakis, ‘Webcasting’ 2010 (n 73). For example, the ICTY does not delay webstreams of public readings of judgments and initial appearances of an accused. ICTY, ‘Courtroom Broadcast’, available at: www.icty. org/sid/252. ICC Regulations (n 58), regulation 21(1) reads: ‘[t]he publicity of hearings may extend beyond the courtroom and may be through broadcasting by the Registry’. See also, in the context of the ICJ, Andreas Paulus, ‘Article 67’, in Zimmermann, ICJ Statute 2012 (n 13), 1661–1668, 1665; and Daniel Erasmus-Khan, ‘Article 58’, in Zimmermann, ICJ Statute 2012 (n 13), 1401–1415, 1409. See ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Press Release of 19 February 2004, Press Release 2004/10.

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principle of publicity at the international level, because the public hearings must be accessible not only to those who are able to be present in person’ (emphasis added).84 Additionally to webstreams, many international courts also offer high-resolution footage (photographs and video recordings) for use by the press.85 The question remains whether the technology revolution and the options of courts for self-broadcasting via the internet have rendered any further debate on external media-conducted recordings and broadcasts futile. It could be argued that court-own audio-visual solutions are a good final compromise between the public’s extended interest in visually following the proceedings and the courts’ (and possibly the parties’ or the accused’s) interest in forestalling sensationalist and tendentious coverage (because the realization of the image-taking and broadcasting is kept indoors).86 This seems to be pertinent in particular for international courts which are confronted with media requests from around the world, and which can hardly satisfy themselves of the professionalism of all media applicants wishing to record the proceedings. Nonetheless, court-own audio-visual media – either directly through webstreams or through footage supplied to the press – cannot in all respects substitute recording and visual coverage by the media itself. To certain stakeholders, court-offered footage may not appear as trustworthy as recordings by third parties, especially since international courts may have an in-built self-interest to evoke favourable public attention and appear successful.87 Although the dangers of outright manipulation such as the (unjustified) cutting out of scenes and sequences by courts of their own visual materials seem rather low,88 it may be the appearance of selectiveness in the ‘mise-en-scène’ of ‘visual court reports’ already that could make courts vulnerable to criticism by sceptics.89 If transparency functions as a tool to control courts, it might indeed seem problematic that courts themselves proffer the secondary materials which form the 84

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IACtHR, ‘Annual Report 2011’, available at: www.corteidh.or.cr/docs/informes/ eng_2011.pdf, 66. See for example ICTY, Prosecutor v. Rahim Ademi: Order Authorising the Distribution of Audio-visual Recordings of the Hearings, Decision of 26 July 2001, Case No. IT-01–46-I. See the position of an ICTY judge in the survey conducted by Mason, ‘Court on Camera’ (n 73). Feinstein, ‘Hybrid’s Handmaiden’ 2010 (n 50), 154 (quoting an interview partner). Cf. Mason, ‘Court on Camera’ (n 73) with reference to an interview partner. See also Joseph Jaconelli, Open Justice: A Critique of the Public Trial (Oxford University Press, 2002), 348. Jaconelli mentions that for this very reason, the ICTY has opted against proffering court-edited audio-visual materials of proceedings.

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basis of external scrutiny. Furthermore, the media itself may have a potentially human rights-backed interest in realizing their specific journalistic objectives and therefore shooting their own pictures: technicalities such as lighting, perspective, image composition, etc. may be used as stylistic devices to implicitly comment on the event.90 In the long run, it would therefore be ideal for courts which have made the basic decision to allow for audio-visual recordings, to both establish webstreams themselves and authorize – subject to certain requirements regarding quality and decorum of coverage – external media to capture and broadcast the proceedings. De lege lata, many international courts do not permit audio-visual recordings operated by external media during the (whole length of the) hearings: at the ICJ, photographers and camera teams are permitted to operate in the Peace Palace during the first minutes of the hearing, the operation of electronic devices, including recording equipment, being otherwise prohibited.91 Similar rules apply, for example, at the ECJ. External media are allowed to record the calling of a case and the delivery of judgments and the Advocate-General’s opinions, however.92 No media-own recordings of hearings are permitted at the ECtHR93 or at the WTO Panels and Appellate Body (once a proceeding is opened to the public). Interestingly, despite the sensitive nature of criminal trials, it is precisely international criminal courts (ICTY, ICTR and ICC), which are, by their procedural law, equipped to authorize recordings by external agents.94 However, in practice, ICTY staff and judges have underlined the importance of keeping the Court in ‘control’ of audio-visual broadcasts, thereby opting against wholesale external solutions.95 External media have been allowed to take photographs at the beginning of hearings, however.96 An exception appears to be the ITLOS, where 90 91

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See von Coelln, Medienöffentlichkeit 2005 (n 72), 35–36. ICJ, ‘Media Services’, available at: www.icj-cij.org. See also, for example, ICJ, Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Press Release of 16 February 2012, Press Release 2012/10, annex: Media Advisory; and von Schorlemer, ‘Article 46’ 2012 (n 56), 1206. See also Khan, ‘Article 58’ 2012 (n 82), 1410, according to whom ‘further steps [beyond court-own broadcasting], e.g. the admission of commercial services, deserve careful consideration’. ECJ, ‘Guide for Journalists’, available at: http://curia.europa.eu. ECtHR, ‘Rules Concerning the Media’, available at: www.echr.coe.int. ICTY Rules (n 71), rule 81(D); ICC Assembly of State Parties, Rules of Procedure and Evidence, ICC-ASP/1/3 (part. II-A), 9 September 2002 (ICC Rules), rule 137(3). Mason, ‘Court on Camera’ (n 73). See for example ICTY, Prosecutor v. Rahim Ademi: Order Authorising the Taking of Photographs, Decision of 26 July 2001, Case No. IT-01–46-I.

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external media may generally record the proceedings if this does not cause disruption.97

4.

Deliberation and Drafting 4.1

The Scope of Secrecy

The potential for international judicial transparency reaches its peak during the oral phase of the proceedings. The ensuing phase of deliberation and drafting is – as in most domestic judiciaries – shielded from any real-time or ex post public scrutiny, the respective rules showing a considerable degree of uniformity.98 Given the de facto law-making powers of international courts and tribunals, it might seem remarkable for States to voluntarily dispense with important supervisory options for the decision-making phase by declaring the deliberations secret. However, various aspects make the secrecy of deliberations an important principle, especially in international adjudication:99 first, it must be ensured that judges are not made to act as ‘agents’ of particular governments which could, by monitoring the discursive behaviour of individual judges, seek to influence them (i.e. through indirectly ‘disciplining’ their discursive ‘inputs’ and by using information from the deliberations to thwart a judge’s re-election).100 Second, the cultural and 97 98

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ITLOS, ‘Media Services’, available at: www.itlos.org. ICJ Statute (n 12), art. 54(3); ICJ Rules (n 12), art. 21(1) first sentence; ITLOS Rules (n 14), art. 42(1) first sentence; however, ICJ Rules (n 12), art. 21(1) second sentence and ITLOS Rules (n 14), art. 42(1) second sentence provide some qualifications to this blanket statement, allowing the Court/the Tribunal to make public those parts of its deliberations that do not concern judicial matters, such as administrative decisions. See further: DSU (n 11), art. 14(1) with art. 14(2) specifying that the parties must be absent during drafting, and DSU (n 11), appendix 3: Working Procedures, para. 3 (concerning deliberations at panels stage); DSU (n 11), art. 17(10) (concerning deliberations of the Appellate Body); see further ECtHR Rules (n 16), rule 22(1); ECJ Statute (n 58), art. 35; IACtHR Statute (n 58), art. 24(2) first sentence, with the second sentence indicating that the Court may allow ex post exceptions; however, IACtHR Rules (n 58), art. 15(2) first sentence specifies that the deliberations ‘shall remain secret’; ICC Rome Statute (n 58), art. 74(4); ICC Rules (n 94), rule 142(1); first sentence. The secrecy of deliberations is considered inherent to the judicial function also at the international level and cannot, therefore, be voluntarily dispensed with by the courts themselves. See WTO, United States – Continued Suspension of Obligations in the EC-hormones Dispute: AB-2008–5, Report of the Appellate Body of 16 October 2008, WT/DS320/AB/R, annex IV: Procedural Ruling of 10 July 2008, para. 8. See on the discussion (partly in the specific context of separate opinions), Vlad Perju, ‘Reason and Authority in the European Court of Justice’, Virginia Journal of International Law 49 (2009), 307–377, 347–351; Jürgen Bröhmer, Transparenz als

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professional diversities amongst judges at international courts bring in their train an increased potential for controversies,101 the publication of which might undermine the authority of, and denationalized collegiality at, international courts102 and raise uncertainty among potential litigants with regard to their litigation strategies. Besides, reproducing the debates among judges during deliberations in public is apt to complicate and obfuscate the reception of the case law of the courts and water down its contents.103 This is so, because observers might take material from the deliberations as ‘commentary’ on the judgments and be misguided in their comprehension of the judgments by informal and preliminary remarks of judges. Seen this way, the secrecy of deliberations functions as an ‘information filter’ which in fact enhances the transparency of decisions. That ‘procedural secrecy’ may function as a tool to enhance the transparency of decisions also means, however, that at times transparency must be balanced against transparency. The procedures observed during deliberations differ considerably among the various institutions, taking account of the varying caseloads and functions of the courts.104 Yet, for practical reasons, in most international courts which operate on a collegial basis, (a) particular judge(s) is/are specifically involved in the actual drafting of the judgment at some point during the deliberations. This raises the question of whether his/her identity/ies are or should be disclosed to the public. At the ICJ, the identities of the members of the drafting committee, which is elected at a later stage during the deliberations,105 remain confidential.106 At best, it might be guessed that the President (or the

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Verfassungsprinzip (Tübingen: Mohr Siebeck, 2004), 292, 294; generally on the independence rationale, 279, 281, 285–286 (with criticism); Daniel Terris/Cesare P. R. Romano/Leigh Swigart, The International Judge: An Introduction to the Men and Women Who Decide the World’s Cases (Oxford University Press, 2007), 124–125, 155. This does not necessarily mean/the secrecy of deliberations does not necessarily entail that separate opinions should not be published, see Perju, 349–351, 359. Terris/Romano/Swigart, The International Judge 2007 (n 100), 62–68. See Perju, ‘Reason and Authority’, 2009, (n 100), 367–369 (who rejects this point to the extent that it is used as an argument against allowing separate opinions); for a general, critical discussion, see Bröhmer, Transparenz 2004 (n 100), 281–284. On this point in the separate opinions context Bröhmer, Transparenz 2004 (n 100), 290. Terris/Romano/Swigart, The International Judge 2007 (n 100), 58–62. ICJ, ‘Resolution Concerning the Internal Judicial Practice’, available at: www.icj-cij.org, art. 6. This may come as a surprise for those unfamiliar with the Court, as neither the Statute, nor the Rules, nor the Resolution contain any clear provision to that effect. By process of extrapolation, the result of the election of the drafting committee could be seen as part of the deliberations, and thus has to remain secret.

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Vice-President) is one of the drafters because normally, he/she is a member of the Committee ex officio.107 Disclosing the composition of the drafting committee could be viewed as an inappropriate way to reveal the views of the judges involved at the time of the start of the drafting process, because article 6(i) second sentence of the ICJ’s Resolution concerning the internal judicial practice108 provides that the members ‘should be chosen from among those judges whose oral statements and written notes have most closely and effectively reflected the opinion of the majority of the Court as it appears then to exist’. However, nowadays, the (later) votes of individual judges are published anyway109 and article 6(i) second sentence of the Resolution is ‘no more than a recommendation’,110 thus allowing no definite conclusions on the drafters’ opinions at the time of the election of the committee. Even if a practice of disclosing the identity of drafters were to develop, its effect in terms of transparency would be somewhat more limited than the disclosure of a single drafter in a rapporteur-based system. At the ECJ, for example, designated judges rapporteurs (who also perform a variety of other functions related to the organization of the case beyond the preparation of a draft judgment) are identified as such in the judgments. In contrast, judges rapporteurs at the ECtHR are merely named, without specification, together with their fellow judges in the judgment or decision.111 The identity of a judge rapporteur might sometimes be guessed – albeit never with certainty – from the fact that it is (reportedly) not uncommon that the respondent State’s national judge is appointed as judge rapporteur.112 This is not possible with regard to Grand Chamber cases where the judge rapporteur is reportedly never identical with the national judge (but the latter is always (also) a member of an appointed drafting committee).113 Nonetheless, the individual drafting input by the judges rapporteurs at the ECtHR is anyway blurred by the fact that 107 109 110

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ICJ, ‘Internal Judicial Practice’ (n 105), art. 6(ii). 108 See above (n 105). See ICJ Rules (n 12), art. 95(1). Hugh Thirlway, ‘The Drafting of ICJ Decisions: Some Personal Recollections and Observations’, Chinese Journal of International Law 5 (2006), 15–28, 17. Daniel Schaffrin, ‘Article 29’, in Karpenstein/Mayer, EMRK Kommentar 2012 (n 38), 466–468, 468. Lech Garlicki, ‘Judicial Deliberations: The Strasbourg Perspective’, in Nick Huls et al. (eds.), The Legitimacy of Highest Courts’ Rulings (The Hague: TMC Asser, 2009), 389–397, 393. See, however, Nina-Louisa Arold, The Legal Culture of the European Court of Human Rights (Leiden: Martinus Nijhoff, 2007), 61–63. Garlicki, ‘Strasbourg Perspective’ 2009 (n 112), 394.

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they are assisted in their preparatory work, to a considerable degree, by the court lawyers.114 At the WTO Panels and the Appellate Body as well as at the ICTY, any specific drafting contributions of adjudicators are generally not revealed to the public.115 All in all, it can be observed that the drafters of judgments at international courts and tribunals are seldom publicly singled out from amongst their colleagues. In terms of transparency, this could be deplored because the drafters (in particular single judges rapporteurs) may exert ‘considerable influence’ on the output and on the style of the judgment.116 By obtaining information on the drafters, close observers of a court might – also in combination with the evaluation of any published dissenting opinions – gain insights into putative power structures and work division practices inside the courts. Nonetheless, due to a lack of information for outsiders on many other organizational aspects of the deliberations and the drafting processes (i.e. on the intensity of modifications made by the other judges and the concrete input of assistants and court lawyers in a given case, etc.), disclosing the identity of drafters would seldom lead to conclusive information on the genesis of concrete judgments.117 The ‘semi-transparent’ state that would thus be precipitated by the publication of drafters’ identities could lead to misinterpretations by observers. It would therefore be unreasonable to call for a general practice of disclosing drafters’ identities at international courts118 even if, precisely due to the limited information value of drafters’ identities, the disclosure would not be very costly for courts in

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Ibid., 393. For the ICTY, see Patricia M. Wald, ‘The International Criminal Tribunal for the Former Yugoslavia Comes of Age: Some Observations on Day-to-day Dilemmas of an International Court’, Washington University Journal of Law and Policy 5 (2001), 87–118, 94. Renaud Dehousse, The European Court of Justice: The Politics of Judicial Integration (New York: St Martin’s Press, 1998), 13 (in the context of the ECJ). Cf. Mohammed Bedjaoui, ‘The “Manufacture” of Judgments at the International Court of Justice’, Pace Yearbook of International Law 3 (1991), 29–61, 50–52, who describes the various stages of ‘recasting’ and reworking of the drafting of judgments at the ICJ and underlines that ‘some commentators, who presume to criticize the style of the Court’s Judgments, appear to imagine that they are produced in one fell swoop by a single pen’. Decidedly against any attempts to ascertain the identity of drafters in the context of the ICJ, Shabtai Rosenne, The Law and Practice of the International Court of Justice, 1920–1996, Vol. III: Procedure (The Hague et al.: Martinus Nijhoff, 1997), 1571 (this statement is not repeated in the 2006 edition, however).

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terms of threats to the independence of judges and to the perception of courts’ judgments as collegiate endeavours.

4.2

The Protection of Secrecy

The secrecy of deliberation at international courts is generally protected both at the institutional as well as at the personal level. Institutionally, provisions may exist which strictly limit the category of persons which are allowed to be present during deliberations and restrictions may exist as to the recording of discussions in deliberations.119 For example, at the ICJ, only the general subjects of the discussion and any vote taken are reflected in the procès verbaux (the so-called ‘PV’s’) unless a judge requests specifically that his or her statement is to be reflected in the notes. At the personal level, judges and other persons designated to participate or be present during deliberations are under an individual obligation to maintain secrecy, the breach of which might entail disciplinary consequences. The protection of the secrecy of deliberations has become a distinct element of various institution-specific as well as overarching codes on international judicial ethics. For example, the ECtHR’s Resolution on Judicial Ethics120 or the WTO’s Rules of Conduct121 specifically highlight the responsibility of judges to honour the secrecy of deliberations by mentioning this aspect separately (next to a general responsibility to exercise discretion in all confidential matters).122 The close linkage between judicial independence and impartiality and the confidentiality of deliberations is further underscored by the overarching ‘Burgh House Principles’123 which provide in para. 7.2 that ‘[j]udges shall maintain the confidentiality of deliberations, and shall not comment extrajudicially upon pending cases’. While transparency of the actual deliberations is generally impossible for the above-mentioned reasons, measures of transparency are in place which in fact function to protect confidentiality. The most obvious example is the requirement for new judges to the bench to take an oath 119 120 121

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See, for example, ICJ Rules (n 12), art. 21(2) and (3). ECtHR, ‘Resolution on Judicial Ethics’, 23 June 2008, available at: www.echr.coe.int. WTO, Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes, WT/DSB/RC/1, 11 December 1996, para. VII.1. Cf., in the domestic context, Bröhmer, Transparenz 2004 (n 100), 277. International Law Association, Study Group on the Practice and Procedure of International Courts and Tribunals, ‘The Burgh House Principles on the Independence of the International Judiciary’, 2004, available at: www.ucl.ac.uk/laws/cict/docs/burgh_final_21204.pdf.

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or a ‘solemn undertaking’ at the commencement of their service at the bench which may contain an explicit vow to honour the secrecy of deliberations.124 Generally, oaths are taken before the public, typically at the first open court session a new judge takes part in as a member of the bench. At some courts, the ‘solemn undertakings’ are webcast along with the regular hearings, and videos and/or photos of the ‘swearing in’ might be available on a court’s webpage. Also, a press release might be issued on the public swearing which may contain an explicit reference to the avowal to honour the secrecy of deliberations.125 Inter alia, the publicity which is generated through such transparency mechanisms functions as a pre-emptive admonition to governments, individuals, and in particular the media, to refrain from any attempt to gain information on the deliberations from the respective judge, and thereby directly contributes to protecting the confidential character of the deliberations.

5. Communication of the Judicial Output The transparency of the judicial ‘output’ (judgments, opinions, etc.) of international courts and tribunals revolves around several dimensions. First, the question may be asked what information a judgment or decision contains substantively or contentwise. In this regard, differences exist between the various courts and tribunals, for example with regard to the publication of voting results, while the option for judges to append separate opinions (either concurring or dissenting) or declarations to a judgment/report or advisory opinion is nowadays common to most international adjudicative bodies. Second, the transparancy of the judicial output relates to the form of judgments and decisions. This concerns aspects which are usually not regulated in detail, i.e. questions of text organization and structure (including the use of headings and sub-headings), indications of sources (i.e. citations of judgments and academic texts), the integration of indexes and lists of abbreviations, etc. Third, aspects of transparency at this stage concern the modalities of communication of judgments and decisions rendered by international courts. Due to space limitations, we focus on the latter by considering separately 124

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See, for example, ECtHR Rules (n 16), rule 3(1); ICC Rules (n 94), rule 5(1) lit. (a). See further the overview and evaluation by Grossman, ‘Legitimacy’ 2009 (n 5), 135, 165. See, for example, ICC, Press Release: Two Newly Elected ICC Judges Sworn-in Today, ICC-CPI-20100120-PR488, 20 January 2010.

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the publication and dissemination of decisions, judgments and opinions by international courts themselves and by States.126

5.1

Communication of Decisions by International Courts Themselves

As regards the communication of the judicial output by international courts themselves, similar basic issues as in domestic adjudication arise with regard to the public reading of judgments, etc., publication activities such as official collections and databases and the courts’ engagement in active information work.127 Generally, international courts are obliged by their statutes and/or by their rules to make public their judgments, etc. beyond servicing them only on the parties. In rare cases, the latter may gain privileged access,128 though: at the WTO, the so-called ‘interim review stage’, which includes, inter alia, the furnishing of the parties with an interim Panel Report for comment, precedes the circulation of the final report among the WTO members (article 15 DSU). In accordance with the situation that open hearings de lege lata constitute an exception at the WTO and that a report must be adopted by the Dispute Settlement Body before gaining binding force, the final reports are not delivered in open session. This is different from other institutionalized international courts which must (in many cases) hold a public hearing during which the judgment or advisory opinion (or parts of it, respectively) is read out to the public.129 The public reading of judgments and advisory opinions 126

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See on this differentiation Council of Europe, Recommendation Rec(2002)13 of the Committee of Ministers to Member States on the Publication and Dissemination in the Member States of the Text of the European Convention on Human Rights and of the Case-law of the European Court of Human Rights, 18 December 2002, Explanatory Memorandum, para. 7 (‘The accessibility of the Court’s case-law depends on the efforts of the Court as well as on that of the member states’) and International Bar Association (IBA), ‘ICC Monitoring and Outreach Programme, First Outreach Report’, June 2006, available at www.ibanet.org, 8. We refer in particular to the works of von Coelln, Medienöffentlichkeit 2005 (n 72), 483–499, 512–530 and Gostomzyk, Őffentlichkeitsverantwortung 2006 (n 51), in particular 168–189 in this context. See on the ICJ’s strict stance against access privileges for the parties Khan, ‘Article 58’ 2012 (n 82), 1407. IACtHR Statute (n 58), art. 24(3) first sentence; ECJ Statute (n 58), art. 37 second sentence; ECJ Rules (n 62), art. 88(1); ICC Rome Statute (n 58), art. 74(5) fourth sentence and art. 83 (4) first sentence; ICJ Statute (n 12), art. 58 second sentence and art. 67; ICJ Rules (n 12), arts. 94(2) and 107(1); ICTY Rules (n 71), rule 98ter(A) and rule 117(D); ITLOS Statute (n 55), art. 30(4) second sentence and art. 40(2); ITLOS Rules (n 14), art. 112(4) second

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is particularly conducive to transparency in that it draws broad public and media attention to a court’s ‘output’ which could not be achieved by a mere release of the written judgment.130 Due to its communicability via audio-visual means, a public reading is prone to further stimulate the public discourse surrounding a case which often (re-)gains momentum around the date of the publication of a judgment.131 The (wider) accessibility of judgments (and other documents) beyond the public reading is usually safeguarded by the respective registries of international courts132 through comprehensive publication programmes which may include official printed collections of judgments and other documents, internet databases, summaries and reports, caselaw handbooks, etc.133 Differences in the organization of publication activities between the various courts mainly have to do with different caseloads. For example, the ECtHR has acknowledged the perils of information overload for transparency and has reorganized its publication practice so as to include only a small selection of judgments of ‘highest jurisprudential interest’ in its (printed) reports (while all judgments are accessible via the Court’s website).134 This pre-organization of ‘raw information’ and highlighting of flagship judgments is meant to enable practitioners and observers to keep track more easily of the developments at the Court. It is carried out by the Court’s Jurisconsult and must be approved at high level.135 (Such) procedures of pre-structuring undoubtedly add to the output transparency of a concrete institution. At the systemic level, a certain (basic) ‘organizing’ element can already be seen in the coexistence of many (specialized) international courts which may render decisions in different fields of international law and

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sentence (for decisions in prompt release proceedings), art. 124(2) and art. 135(1); see, however, ECtHR Rules (n 16), rule 77(2). On the publicity effects of the public readings at the ICJ Khan, ‘Article 58’ 2012 (n 82), 1401–1402 and 1414–1415 and Paulus, ‘Article 67’ 2012 (n 82), 1662 and 1668. Feinstein, ‘Hybrid’s Handmaiden’ 2010 (n 50), 137 (with further references). ICJ Rules (n 12), art. 26(1) lit. (i); ECtHR Rules (n 16), rule 78; Annabeth Rosenboom, ‘Publications of International Courts and Tribunals’, The Law and Practice of International Courts and Tribunals 3 (2004), 543–551. Rosenboom, ibid. For detailed outlines of the various publication activities of the ECtHR and the ICJ see ECtHR, Annual Report 2011 (Strasbourg: Registry of the European Court of Human Rights, 2012), 71–83; ICJ, Annual Report 2010/2011, 2011 (n 4), 137–140. ECtHR, Annual Report 2011 2012 (n 133), 71. Cf. also Council of Europe, Committee of Ministers, Resolution Res(2002)58 on the Publication and Dissemination of the Caselaw of the European Court of Human Rights, 18 December 2002, para. iii. See in detail on transparency through such ‘selection’ and ‘marking measures’ in domestic adjudication Gostomzyk, Őffentlichkeitsverantwortung 2006 (n 51), 104–106, 173–175. ECtHR, Annual Report 2011 2012 (n 133), 71.

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operate their own, necessarily topic-specific publication programmes (certainly, this effect does not exist where jurisdictions overlap and where information on case law regarding general international law is sought). In addition to passive offers of information, international courts may also engage in proactive strategies to communicate their output and other activities to specific stakeholder groups. Outreach and information campaigns are a particularly important element and a growing field of study of international criminal justice where they are intended to serve judicial transparency, accountability and the fair trial principle.136 Outreach campaigns function as mechanisms to spread a court’s message, especially where local authorities and/or media misinform affected populations137 or local authorities lack the resources to inform their citizens about an international court. Furthermore, they are designed to compensate for inequalities in the access to information in stakeholder societies although, in reality, the ‘information poor’, i.e. those who do not have any access to mainstream media (television, radio, internet) at all, may still ‘fall through the mesh’.138 Outreach strategies as employed, i.e., by the ICC, serve as mechanisms of ‘institutional transparency’ because they provide information on a court and on a ‘situation’ it investigates independently of a concrete judicial proceeding.139 But they also play an important role in the information on particular cases and judgments140 and encompass measures to deskill complex judicial texts with the aim of making judgments also understandable for low-educated, poverty-smitten societies.141 136

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ICC, ‘Integrated Strategy’ (n 69), 2; IBA, ‘ICC Outreach Report’ 2006 (n 126), 3. On the differentiation between ‘transparency models’ and more dialogue-oriented ‘engagement models’ of outreach see Victor Peskin, ‘Courting Rwanda: The Promises and Pitfalls of the ICTR Outreach Programme’, Journal of International Criminal Justice 3 (2005), 950–961, 954. See on the similar basic functions of public relations work of domestic courts von Coelln, Medienöffentlichkeit 2005 (n 72), 516–517. ICC-ASP, Outreach, 2006 (n 74), paras. 13 and 17(f); IBA, ‘ICC Outreach Report’ 2006 (n 126), 3–4, 7 and 8 (also with further references). Patrick Vinck/Phuong N. Pham, ‘Outreach Evaluation: The International Criminal Court in the Central African Republic’, The International Journal of Transitional Justice 4 (2010), 421–442, 431–433, 437, and 440. See IBA, ‘ICC Outreach Report’ 2006 (n 126), 9 (stressing the importance of ‘situationrelated’ outreach in addition to information on the Court ‘in general’). See on the distinction between institutional and case-specific as well as on the distinction between ‘situation-related’ and ‘case-related’ information activities ICC-ASP, Outreach 2006 (n 74), paras. 13 and 32–44. Ibid., paras. 44 and 45–47; Peskin, ‘Courting Rwanda’ 2005 (n 136), 954, 957. See in the domestic context von Coelln, Medienöffentlichkeit 2005 (n 72), 517.

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Outreach and information programmes are an idiosyncrasy of international criminal courts which fulfil specific mandates and face particular difficulties in the communication of their activities in the shattered public spheres of combat-stricken or post-war areas.142 Other types of international courts usually do not dispose of comparable (published) public relations strategies (although substantially, certain more passive elements such as the operation of interactive websites, the webcasting of hearings, etc. are common to those courts as well). There is some debate whether courts other than criminal tribunals should engage in more active public relations work, especially in order to explain judgments to specific audiences and steer the public discourses surrounding their output:143 while, for example, the former registrar of the ICJ, Eduardo Valencia-Ospina, in 1997 spoke out against more active press work due to the specific regard the ICJ must have towards the needs and interests of the parties and the less intense public interest in cases before the ICJ as compared to criminal cases,144 practitioners as well as scholars have argued that a greater responsiveness to the public and the press, in particular at the stage of the delivery of the judgment,145 could both facilitate public supervision of and rally support for international courts in general.146 Against this background, the outreach and information campaigns of criminal courts (in particular the highly-developed strategy of the ICC) could – in part – serve as a model or reference point for more proactive transparency initiatives or public relations strategies by the other international courts. Elements such as, for example, the active and direct targeting of local media in particular cases could serve as valuable means to foster a genuine and uniform understanding and reception of judgments and other court activities by affected populations in cases concerning boundaries, economic, environmental and other disputes, and might thus be deemed adoptable by other courts. Beyond questions of the substantive design, setting up and/or publicizing some formalized and integrated public information strategy has the merit of clarifying 142 143 144 145

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Feinstein, ‘Hybrid’s Handmaiden’ 2010 (n 50), 140–145, 147. Terris/Romano/Swigart, The International Judge 2007 (n 100), 173. Valencia-Ospina, ‘Making Known the Work of the Court’ 1997 (n 35), 216–217. It has been suggested, for example, that the ICJ registrar answer questions of the press after the public delivery of a judgment or advisory opinion: Keith Highet, ‘Problems in the Preparation of a Case: Perceptions of the Parties and the Court – Presentation’, in Peck/Lee, Effectiveness 1997 (n 35), 127–148, 136. Terris/Romano/Swigart, The International Judge 2007 (n 100), 170–174; also with reference to Lawrence Helfer/Anne-Marie Slaughter, ‘Toward a Theory of Effective Supranational Adjudication’, Yale Law Journal 107 (1997), 273–391, 312.

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and delineating the scope and character of informational activities of courts and tribunals both for members of the court, the registry and staff as well as external observers, and thereby contributes to reducing misunderstanding. This alone may justify the consideration of comparable measures147 by courts other than criminal courts.

5.2

Communication of Decisions by the State Parties

The publication activities of the courts themselves may not be a sufficient guarantee that international judgments permeate the civic societies of member States and in particular reach those entities, authorities (including domestic courts) and private parties which are directly affected by the judgments, either as prote´ge´s, or potential breakers or ‘appliers’ of underlying international legal rules. This raises the question whether (1) member States in general and/or (2) State parties to a dispute before an international court should act as information brokers and support international courts in the publication and dissemination of judgments among their authorities and populations. As regards the member States in general, the applicable statutes and rules of international courts do not provide for any obligations to publish international judgments. This is in accordance with the situation that judgments of international courts only bind the parties of a dispute and do not directly affect the other member States. Also, member States, as a general rule, are free to choose the concrete methods under domestic law for implementing international rules as construed by international courts. This entails also that the responsibility to organize the cognizance and reception of international decisions within member States rests in principle with the member States themselves. It is submitted, however, that member States – based on written148 or unwritten cooperation duties flowing from their membership status149 – must assist an international court in the carrying out of certain publication activities upon request of the latter. Furthermore, in the specific case of the ECtHR, member States are recommended by the parent organization, i.e. the Council of Europe, to 147 148

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Contra, in the domestic context von Coelln, Medienöffentlichkeit 2005 (n 72), 516. See, e.g., ICC Rome Statute (n 58), part 9 entitled ‘International Cooperation and Judicial Assistance’. ICC Rome Statute (n 58), art. 86 contains a general obligation of state parties to cooperate with the court. See also ICC Rome Statute (n 58), art. 93(1) lit. (l). See in detail on the cooperation obligations between international courts and member States Anne Peters, ‘International Dispute Settlement: A Network of Cooperational Duties’, European Journal of International Law 14 (2003), 1–34.

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engage in certain publication and dissemination strategies of judgments.150 For example, member States are encouraged to translate important case law and publish it through official channels (such as official gazettes, information bulletins of ministries, etc.),151 provide their judiciaries with ‘copies of relevant case-law’,152 disseminate judgments with explanatory memoranda to specific public and private target groups (such as, for example, police authorities, bar associations, etc.)153 and provide financial assistance to researchers who explain and analyse the ECtHR’s case law in a member State’s spoken language.154 The recommendation provides a valuable framework for harmonization and streamlining of efforts to be made by member States in the interest of the transparency of the ECtHR’s case law. Due to its non-binding character and its taking heed of domestic traditions in the publication of judicial decisions,155 the recommendation ‘spares’ the sovereignty of member States. Against the background of a ‘proliferating’ usage of international courts, the latter – sooner or later – will have to increasingly draw on the member States’ assistance in the publication, translation and dissemination of their judgments if they want to ensure a uniform reception of their case law by domestic courts and constituencies. International courts might therefore want to consider devising (non-binding) instructions like the Committee of Ministers’ in the case of the ECtHR or explore options for ‘publication and dissemination contracts’156 with member States. Nonetheless, ‘publication partnerships’ with member States should also encompass measures of control on the part of international courts, i.e. to ensure that a court’s quality standards regarding its publications are also met at the domestic level. As regards the State parties to a dispute before an international court, specific publication requirements may be imposed as secondary obligations (measures of satisfaction) in the context of State responsibility.157 Notably, the IACtHR has established a diversified practice in this regard 150

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Council of Europe, Recommendation Rec(2002)13 of the Committee of Ministers, 2002 (n 126). Ibid., para. ii. 152 Ibid., para. iv. 153 Ibid., para. vi. Ibid., para. iii with explanatory memorandum to Rec(2002)13, para. 19. Ibid., preliminary remarks and explanatory memorandum to Rec(2002)13, para. 11. Cf. in this regard the practice of the IACtHR to conclude cooperation agreements with different types of domestic institutions which also cover issues of ‘dissemination . . . work’, IACtHR, ‘Annual Report 2011’ (n 84), 72. See also Pasqualucci, IACtHR – Practice and Procedure 2013 (n 51), 331. Pasqualucci, IACtHR – Practice and Procedure 2013 (n 51), 205–206; IBA, ‘ICC Outreach Report’ 2006 (n 126), 7–8. Cf. Brown, A Common Law 2007 (n 3), 209–216.

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and has frequently ordered – often on application of the Inter-American Commission of Human Rights and/or the representatives of the victims – (different) combinations of publication measures to be implemented by the respective respondent State.158 For example, in a number of cases, the Court obliged the respondent State to publish the official summary of a judgment in its official gazette, place an official summary of a judgment in the print media and make available to the public the full judgment via the internet.159 In these cases, the Court specifically emphasized that the respective State must publish the official summary as drafted by the Court itself (and not a summary prepared by the respondent State). This ensures, inter alia, that all relevant information is actually transported to the domestic constituencies also in the summaries and that information on a judgment of the IACtHR is circulated in a uniform fashion. In certain cases, the Court (also) laid out in detail the paragraphs (both reasoning and operative parts) of its judgment(s) which had to be officially published by the State.160 In order to safeguard the easy readability of the judgment also in the respective government publication, the Court highlighted that the specified paragraphs of the judgment had to be published together with the headings and subheadings as contained in the official version of the judgment.161 Furthermore, in the case of Vera Vera v. Ecuador, the Court also ordered the dissemination of the judgment among the concerned authorities as a guarantee of non-repetition.162 Similar orders have not, so far, been pronounced by the ECtHR. However, the publication and especially the dissemination of judgments to concerned authorities have time and again played an important role as ‘general measures’

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Pasqualucci, IACtHR – Practice and Procedure 2013 (n 51), 205–206; IBA, ‘ICC Outreach Report’ 2006 (n 126), 7–8 (contrasting the IACtHR’s case law with outreach strategies by international criminal courts). See, e.g., IACtHR, Mejía Idrovo v. Ecuador, Judgment of 5 July 2011 (Preliminary Objections, Merits, Reparations, and Costs), 2011 Series C No. 228, para. 141; IACtHR, Lysias Fleury et al. v. Haiti, Judgment of 23 November 2011 (Merits and Reparations), 2011 Series C No. 236, para. 125; IACtHR, González Medina and Family v. Dominican Republic, Judgment of 27 February 2012 (Preliminary Objections, Merits, Reparations and Costs), 2012 Series C No. 240, para. 295. IACtHR, Vera Vera v. Ecuador, Judgment of 19 May 2011 (Preliminary Objections, Merits, Reparations and Costs), 2011 Series C No. 226, para. 125; IACtHR, Salvador Chiriboga v. Ecuador, Judgment of 3 March 2011 (Reparations and Costs), 2011 Series C No. 222, para. 127. Ibid. 162 IACtHR, Vera Vera v. Ecuador (n 160), para. 125 in fine.

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adopted by respondent States to implement a judgment under the supervision of the Council of Europe’s Committee of Ministers.163

6. Conclusions and Outlook In the concluding part we aim to contextualize the cross-institutional acquis of international judicial transparency norms and practices as identified and analysed above within certain core structural transparency categories which traditionally pervade academic discussions on governmental openness, transparency and information management. It is in particular the dichotomies164 of ‘direct vs mediated’, ‘originary vs meta’ and ‘proactive vs reactive’ transparency which are relevant in the context of international courts and tribunals.

6.1

Overarching Structural Hallmarks of International Judicial Transparency

6.1.1 Direct vs State-mediated Transparency A first overarching structural hallmark of international judicial transparency can be seen in the distinction between direct transparency measures, i.e. between international courts and individuals, and indirect or mediated transparency measures, i.e. transparency as effected by States, either of their own accord or at the behest of the respective international court.165 In fact, many of the discussed transparency measures (open hearings, access to judgments and, perhaps, court documents including pleadings, etc.) establish direct communication channels with 163

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ECHR (n 16), art. 46(2); Council of Europe, Committee of Ministers, Rules of the Committee of Ministers for the Supervision of the Execution of Judgments and of the Terms of Friendly Settlements, 10 May 2006, rule 6(2) lit. b. ii. (with n 2). See for an example on the publication and dissemination of a judgment by the German authorities, Council of Europe, Resolution of the Committee of Ministers on the Execution of the Von Hannover Judgment (No. 59320/00) of 24 June 2004, CM/ResDH(2007)124, 31 October 2007, with the appendix. With regard to the description of transparency modalities in ‘dichotomies’ we borrow generally from David Heald, ‘Varieties of Transparency’, in Christopher Hood/David Heald (eds.), Transparency: The Key to Better Governance, Proceedings of the British Academy 135 (Oxford University Press, 2006), 25–46. See in particular section 5 and the references in n 126. See on the related but distinct problem of public relations work of international courts and judges to directly reach out to a ‘broader audience’ Terris/Romano/Swigart, The International Judge 2007 (n 100), 170–174 (with references) and above, section 5.1.

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individuals despite the fact that individuals can only be parties to the proceedings in some courts. For example, it is quite remarkable that all international courts which allow for open hearings in principle admit any individuals (rather than merely State representatives) to attend the proceedings.166 Even more so, individuals from any country and not only from the member States of a court or from the State(s) involved in a concrete dispute may generally attend hearings. The same holds true for the granting of access to court documents (once they are publicized) and judgments. (Third-party) States may sometimes be privileged through more timely information167 or reserved seats during hearings168 but in these cases there is no indication that information or access is typically withheld by courts for the purpose of (first) allowing States to inform their domestic publics. For example, States who gain privileged access to documents at the ICJ are required to keep those confidential themselves until the ICJ renders a decision on the publication.169 Hence, contrary to the normal situation in international law that individuals still do not count as full-fledged legal subjects and primary addressees and beneficiaries of international legal norms, many measures of international judicial transparency as contained in the statutes and rules of procedure are normally directed at individuals as beneficiaries. Only exceptionally (and/or additionally) communication channels run via the member States (an example being the further dissemination of ECtHR and IACtHR judgments), although, due to the ‘proliferation’ of courts and tribunals, member States may increasingly act as information brokers on behalf of international courts in the future.170 This is not to suggest that the respective procedural norms confer enforceable subjective access rights on individuals. Nonetheless, individuals in general (and not merely State representatives) are clearly in the direct focus of many international judicial transparency norms and practices. The prevalence of direct communication channels and the bypassing of (member) States keeps ‘information chains’ short and enables

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167 168

169

In fact, one argument against open hearings at the WTO Dispute Settlement Mechanism has been that opening the proceedings to the general public might endanger the intergovernmental character of the proceedings: see Ehring, ‘Public Access’ 2008 (n 75), 1025. See ICJ Rules (n 12), art. 53(1). At the ICJ, State delegations, diplomats, etc., may gain privileged access. See ICJ, ‘Attending a Hearing/Sitting’, available at: www.icj-cij.org. Talmon, ‘Article 43’ 2012 (n 13), 1123. 170 See above, section 5.2.

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individuals to attain insight into the work of international courts without any potentially blurring or even falsifying effects of information brokerage by States.171 As regards international courts themselves, their direct accessibility by individuals and their immediate self-presentation in the various domestic public spheres must be considered an inherent part of their independence, in particular from (member) States. Lastly, it is also the States which may benefit from directly transparent international adjudication: from a political science perspective, international courts and tribunals are frequently said to function as scapegoats for intra-State criticism of the handling of (international) conflicts by governments. Unpopular conflict solutions are ‘blamed’ on the binding judgments of an international court to create a ‘there-is-no-alternative’ narrative and to stabilize governments in the domestic sphere.172 This mechanism functions better where international courts are in a direct communicative relationship with individuals as opposed to situations where States act as information brokers of an unpopular judgment because of the greater immediacy of international courts as ‘anger projection surfaces’, which may be achieved through direct communication and because of the effect that ‘no one loves the messenger who brings bad news’.

6.1.2 ‘Originary’ vs Meta-transparency As shown above, at different stages of international proceedings, transparency or confidentiality is for its part either supplemented, justified or enforced by or through (other) measures of transparency. In these cases, the very object of transparency is transparency or confidentiality itself. It is suggested that doctrinally, these ‘meta-transparency’ rules173 form a distinct (norm) category within judicial transparency regimes because of their specific relation to the ‘originary’ transparency or confidentiality rule and their inherently dependent nature. Two major types of ‘meta-transparency’ measures can be distinguished: auxiliary meta-transparency measures serve to safeguard the efficiency and proper functioning of an ‘originary’ transparency (or confidentiality) obligation or mechanism. Examples are user instructions 171 172

173

See IBA, ‘ICC Outreach Report’ 2006 (n 126), 8. Peters, ‘Network’ 2003 (n 149), 7; Karen J. Alter, ‘Do International Courts Enhance Compliance with International Law?’, Review of Asian and Pacific Studies 25 (2003), 51–78, 60, 65, and 73 (with further reference). Cf. further Terris/Romano/Swigart, The International Judge 2007 (n 100), 173 (with reference to an interview with an ICJ judge). On the general discussion on ‘meta-secrecy’ and the so-called Glomar responses see Axel Gosseries, ‘Publicity’, 12 January 2005, available at: http://plato.stanford.edu/ archives/fall2010/entries/publicity, para. 1.4.2.

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on websites for court-own case law databases, information on the dates of hearings174 and also, for example, the broadcasting of a judge’s vow to honour the secrecy of deliberations.175 Justificatory meta-transparency measures essentially function to explain confidentiality. The most important example is the (only at some courts explicitly stipulated) rule that courts publicize the reasons for a decision to exclude the public from hearings or deny access to documents (once they are required to generally provide access to hearings and documents).176 In particular with regard to justificatory meta-transparency measures, different doctrinal paths could prima facie be contemplated to explain their origin and normative force: first, justificatory meta-transparency measures can be seen as a component of the originary transparency obligation which might be considered to contain, as a minus (and not an aliud) to ‘full’ transparency, an obligation to make transparent at least the reasons for any limitations of the originary transparency obligation.177 In application of the general proportionality principle, publicizing the reasons (even if only in a superficial manner) for a confidentiality order may thus be a less severe limitation of ‘originary’ transparency in comparison to simply imposing confidentiality without explanation. In this regard, meta-transparency would function as a general international law-based counter-limitation of (statutory) exceptions to the originary transparency obligation (‘Schranken-Schranken’) which could even be deemed applicable where courts do not explicitly provide for an obligation to publish the reasons for confidentiality in their procedural norms regimes. A second doctrinal background of justificatory meta-transparency which could obviously be taken into consideration is the general rule to give reasons178 (as a general principle of international law). However, the latter does not generally apply also to the procedural decisions rendered by international courts and tribunals179 and cannot, therefore, be deemed a reliable doctrinal basis for justificatory metatransparency in cases where the statutes, rules and regulations of international courts are silent on that matter. In any case, ‘meta-transparency’ should not only be seen as a pivotal functional aspect of international judicial transparency norms as such 174 175 177 178 179

In the context of the ICJ Khan, ‘Article 58’ 2012 (n 82), 1409. Above, section 4.2. 176 Above, (n 71). See also von Schorlemer, ‘Article 46’ 2012 (n 56), 1206 (in the context of the ICTY). See also Gosseries, ‘Publicity’ 2010 (n 173), para. 1.4.2. See Grossman, ‘Legitimacy’ 2009 (n 5), 128 (also with n 101): ‘many tribunals are not required to publish their reasoning on procedural decisions’.

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but also as a core value of publicly responsible and responsive courts in modern information societies. ‘Meta-transparency’ may greatly facilitate access to information: it demonstrates vis-à-vis observers that their transparency (or confidentiality) interests and demands are taken seriously, enables observers to control the application of confidentiality by courts, and contributes to the legal solidification of transparency in that the interpretive practice of courts and tribunals as regards ‘originary’ transparency rules is made public.180 It would thus be desirable for international courts and tribunals to recognize in a more systematic fashion their (potentially even general international law-backed) responsibilities to make reasons and conditions of secrecy (where it is necessary) transparent, inform about transparency mechanisms, etc. by codifying respective ‘meta-transparency’ obligations (more often) in their procedural norms regimes.

6.1.3 Proactive vs Reactive181 Transparency A much-discussed aspect of governmental transparency in general is the burden of initiative as regards the disclosure of information vis-à-vis stakeholders. Typically, proactive transparency is defined as the obligation to make available information without a preceding freedom of information request.182 This rather formal, general notion of proactive transparency can be conceptually distinguished183 from the specific forms of proactive communication and media work which play an important role in the context of public relations and outreach work, in particular of international criminal courts.184 Applying the formalrequest criterion to the transparency of international courts and tribunals in general, it becomes clear that in most cases where access to core information (such as judgments and orders) is in principle granted by the international courts analysed above, this is done on a proactive basis: neither are individuals required to lodge formal requests to be provided with a copy of a judgment (for these are usually made available online or in official collections of judgments) nor do they have to formally petition to be admitted to hearings. As to the latter, however, there is a cross-institutional tendency that international courts, for 180 181

182

Cf. ibid (generally on publishing the reasoning underlying procedural decisions). Seminally Helen Darbishire, ‘Proactive Transparency: The Future of the Right to Information?’, World Bank Institute Governance Working Paper Series No. 56598 (2010). Ibid. 183 Cf. von Coelln, Medienöffentlichkeit 2005 (n 72), 512. 184 See section 5.1.

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security and/or other reasons, demand prior online registration by individuals who wish to be present during hearings. This practice has provoked mixed reactions185 and may come close to a ‘formal-request barrier’ in the above-mentioned sense. Furthermore, as regards the access to case files (where access is granted at all), proactivity is not (yet) standard. In addition to the formal-request criterion (in place for example at the European General Court), de facto burdens may be in place, for example the requirement that case files can only be accessed at the premises of an international court or tribunal (this is the case at the ECtHR, although case files are in principle open to the public). In contrast, courts like the ICJ, ITLOS, ICTY, etc. grant online access to (large parts of or the complete) digitalized case records. De lege lata, most of the above-analysed statutory norms for the publicity or publication of court information do not contain any details as to the modalities of implementation of transparency. From that perspective, courts and tribunals are in principle free to place the burden of initiative on court observers and individuals by setting up formalrequest requirements. They should, however, bear in mind that proactivity is an information organization principle or maxim which is essential and critical for the overall transparency of institutions, because it facilitates access to information and therefore creates an incentive for observers to actually retrieve those items of information.186 Certainly, proactivity sceptics might argue that placing the burden of initiative on court observers may in some cases be sensible, too: setting up formal-request criteria could be deemed a form of pre-arrangement of ‘raw information’ by courts because it may signal to observers that the information-holding court does not consider a particular item of information relevant or useful for the general public (while it still holds the information available for specifically interested parties). From that perspective, formal-request barriers would function as information filters which could enhance transparency. However, there are clearly other methods of marking the putative irrelevance of information for the benefit of the average user (e.g. by setting up separate databases for case records, etc.). Still, formal-request barriers may in context be justified if they fulfil security functions,187 if the confidentiality of information on victims and witnesses might be endangered (for example, if the 185 186 187

See Ehring, ‘Public Access’ 2008 (n 75), 1027 and Khan, ‘Article 58’ 2012 (n 82), 1409. See Darbishire, ‘Proactive Transparency’ 2010 (n 181), 3–4. See on this also Khan, ‘Article 58’ 2012 (n 82), 1409.

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practice of publicizing large quantities of documents in a timely and proactive fashion might temporarily lead to an increase in mistakes in the redaction of documents)188 or where the costs of running a proactive disclosure regime might be grossly out of proportion to the actual interest of stakeholders in the particular category of information.

6.2

A Common Principle of International Judicial Transparency?

Our survey has shown that contrary to other branches of international institutional law, international judicial transparency builds on a considerable acquis of hard-law obligations which can be found in the statutes and rules of international courts and tribunals. The question may thus be asked to what extent this multiplicity of rules and norms may be conceived of as forming a comprehensive, overarching legal principle of international adjudication.189 Such a principle would in any case be characterized by a certain open-endedness: first, the list of courts which make transparency the rule for the specific aspects of their proceedings will continue to vary. Second, the list of components which by a majority of courts is considered to be inherent to the concept of international judicial transparency is undetermined and likely to change over time.190 This relativity of transparency notwithstanding, pan-institutional uniformities with regard to certain ‘core aspects’ such as the publication of judgments, the general openness of hearings (for the majority of courts) as well as the non-transparency of deliberations do point to the existence of a ‘normative skeleton’ of an overarching judicial transparency principle which is likely to be fleshed out further – also along the lines of the above-mentioned structural hallmarks – as the ‘proliferation’ of international courts and tribunals progresses. This fleshing-out will depend on the (continuing of the de facto) ‘de-confidentialization’ of traditionally closed proceedings such as, for example the WTO Dispute Settlement Proceedings. It will also depend on the continuous experimenting with and improvement of the rules and practices as far as the modalities of access to and organization of information by more open courts such as the ICJ, ITLOS, criminal and human rights courts are concerned. 188 189 190

Cf. Darbishire, ‘Proactive Transparency’ 2010 (n 181), 31. See generally Brown, A Common Law 2007 (n 3). Cf. also ibid., 234–237, on possible general ‘limitations [to the] further development of common practices in international adjudication.’

18 Transparency and Business in International Law: Governance between Norm and Technique larry cat backer*

1. Introduction In the second decade of the twenty-first century, academics have come to recognize the diffusion of power away from the State and the rise of governance centres elsewhere, especially in the international sphere.1 But the techniques of that power and the methodologies of that diffusion remain mysterious. In the 1970s, Michel Foucault predicted this fundamental change in the character of the State and its function, from a ‘state of justice’ grounded in territoriality and law to a ‘state of government’ no longer defined by territory but by the ‘mass of the population’.2 The improvement of the condition of this ‘mass’ serves both as the final ends of government3 and as the instrument of that object.4 Those ends and means have produced a governmentalization of institutions around which populations are organized – States, international organizations, corporations, non-governmental actors and religious communities5 – understood as ‘the ensemble formed by the institutions, procedures, analyses and reflections, calculations and tactics that allow the exercise of this very specific power’.6 But the mass of the population is itself * This project would not have been realized without the able work of my research assistant Robert W. Marriott (JD, Pennsylvania State University, expected 2013). 1 Gralf-Peter Calliess/Peer Zumbansen, Rough Consensus and Running Code: A Theory of Transnational Private Law (Oxford: Hart Publishing, 2010), 27–181. 2 Michel Foucault, Security, Territory, Population, Lectures at the Collège de France 1977–1978 (Graham Burchell trans.) (New York: Palgrave Macmillan, 2007), 110. 3 Ibid., 105. 4 Ibid. 5 Larry Catá Backer, ‘Governance without Government: An Overview’, in Günther Handl/ Joachim Zekoll/Peer Zumbansen (eds.), Beyond Territoriality: Transnational Legal Authority in an Age of Globalization, Queen Mary Studies in International Law 11 (Leiden/Boston: Martinus Nijhoff, 2012). 6 Foucault, Security 2007 (n 2), 108.

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incarnated from the procedures, analyses and reflections, calculations and tactics that define governmentalization. Foucault identifies the instrument of this incarnation as ‘statistics’, which ‘enables the specific phenomena of the population to be quantified’.7 These ‘statistics’ enmesh both the generation of data and its availability to participants in governance.8 The triangular relationship between governmentalization (of both public and private institutional actors with managerial power), the mass of the population (which is its object and now its foundation), and the ‘statistics’ (that both define and serve to manage the mass of the population) is the essence of the problem of transparency in the twenty-first century and the subject of this chapter. This problem of transparency can be understood from its role both as technique and norm, as the need for formal constituting structures of organization and as the ‘tight grid of disciplinary coercions that actually guarantees the cohesion of that social body’.9 As technique, transparency is the aggregate of methods of producing information for use in managing and policing power relationships. As norms, transparency expresses the normal and acceptable – right conduct, right rule and right relations: it embodies the ends for which it also provides the means. Transparency is deployed in two quite distinct arenas: internally to enhance operations and discipline members; externally to enhance legitimacy (norm) and accountability (technique) among stakeholders who have an interest in but not a direct participation in the operation of the enterprise.10 In the public sphere, transparency serves to veil or disguise the more difficult discussion of participation in, and the accountability of, institutional actors11 among the mass of the population or subset communities.12 It functions as a method of deflection, and in this sense transparency serves as a symptomatic discussion.13 Yet this deflection 7 8

9

10 11

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Ibid., 104. Larry Catá Backer, ‘Global Panopticism: Surveillance Lawmaking by Corporations, States, and Other Entities’, Indiana Journal of Global Legal Studies 15 (2008), 101–148. Michel Foucault, ‘Society Must Be Defended’: Lectures at the Collège de France 1975–1976 (David Macey trans.) (New York: St Martin’s Press (Picador), 2003), 37. Ibid., 38–39. Alan Boyle/Kasey McCall-Smith, ‘Transparency in International Law-making’, chapter 16 in this volume. Anders Esmark, ‘The Functional Differentiation of Governance: Public Governance Beyond Hierarchy, Market and Networks’, Public Administration 87 (2009), 351–370, 353–356. Megan Donaldson/Benedict Kingsbury, ‘Power and the Public: The Nature and Effects of Formal Transparency Policies in Global Governance Institutions’, chapter 19 in this volume.

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both produces incoherence of legal norms and subjects the conceptsymptom of transparency to its own indeterminacy and ultimately to incoherence even as symptom, an effect now well understood within regimes of intellectual property.14 That incoherence grows as globalization provides a structure for choosing among legal regimes – the norm-technique structures of transparency in the public sphere now become commodity as well. In the private sphere transparency also can be understood as a substitute, but in this case as a substitute for the more difficult discussion of accountability and participation within the ideology of globalized markets and shareholder wealth maximization. Transparency, as the language through which the social, environmental, human rights and economic impacts of corporate activity can be revealed, assessed and engaged in by stakeholders with an interest in the action, serves as battleground for the obligation to give form to these impacts and to permit stakeholders to participate in decisions touching on those actions. Thus, the ideology of shareholder welfare maximization as a pronouncement of law15 becomes the basis of regimes of management of private markets for securities, grounded in transparency that itself deepens the normative commitment to shareholder welfare maximization by focusing almost exclusively on financial reporting as the basis for the incarnation of the corporation and its activities.16 Transparency serves both as norm and technique. But efforts to substitute a different normative framework of corporate activity, grounded for example in stakeholder or public welfare maximization, does not seek to directly engage the foundational ideology. Instead it seeks to change the focus of disclosure and transparency engagement – by focusing on such things as environmental,17 human rights,18 or 14

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Thomas Cottier/Michelangelo Temmerman, ‘Transparency and Intellectual Property Protection in International Law’, chapter 8 in this volume. US Michigan Supreme Court, Dodge v. Ford Motor Company, Judgment of 1919, 204 Mich. 459, 170 N.W. 668. Larry Catá Backer, ‘Using Corporate Law to Encourage Respect for Human Rights in Economic Transactions: Considering the November 2009 Summary Report on Corporate Law and Human Rights under the UN SRSG Mandate’, 14 January 2010, available at: http://lcbackerblog.blogspot.com. David W. Case, ‘Corporate Environmental Reporting as Informational Regulation: A Law and Economics Perspective’, University of Colorado Law Review 76 (2005), 379–442, 395–401. UN, Human Rights Council, Report of the Special Representative of the SecretaryGeneral on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises; John Ruggie: Guiding Principles on Business and Human Rights:

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societal19 impacts of corporate activities as a means of measuring, reporting and accounting. But these efforts both mask the objective – engagement in a normative discussion framed by law. These efforts create dissonance to the extent that the normative objectives attained through transparency regimes are opposed to the fundamental legal ordering structures and moves towards polycentricity in governance, accelerating the shift of governance power from the State.20 Transparency, removed from the orbit of law and the State, becomes an essential mechanics for the articulation of alternative normative standards as soft law.21 Yet this is also transparency that is shaped by fundamentally statist notions, and in particular notions of property. Consequently, the private sphere provides a useful lens through which to understand the problem of transparency as mechanism, object and mediating mechanism. Transparency functions as a mechanism for accountability to stakeholders, for risk management by company boards and officers, and of autonomous private governance beyond the State through, for example supply and value chains (crucial component of non-State ‘law’ systems). But it is also property, as both commodity and object. As commodity, transparency, like law within global governance markets, can be marketed, bought and consumed in the production of profit. This is transparency in its external context, emphasizing its component elements (technique) and its character as inventory bought/sold/combined to suit the needs of its users in context by both private and public manufacturers of systems transparency techniques. As object, one that is meant to produce the objects (information) to be consumed by internal and external stakeholders, it functions as the articulation of the normative framework that shape the character and

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Implementing the United Nations ‘Protect, Respect, and Remedy’ Framework, A/HRC/ 17/31, 21 March 2011. David Crowther, Social and Environmental Accounting (London: Financial Times/ Prentice Hall, 2000); Andrew Savitz, The Triple Bottom Line: How Today’s Best-Run Companies Are Achieving Economic, Social and Environmental Success – And How You Can Too (New York: Jossey-Bass, 2006). Inger J. Sand, ‘From the Distinction Between Public Law and Private Law – To Legal Categories on Social and Institutional Differentiation’, in Hanne Peterson/Henrik Zahle (eds.), A Pluralistic Legal Context, in Legal Polycentricity: Consequences of Pluralism in Law (Aldershot: Dartmouth Publishing, 1995); Surya P. Sinha, Legal Polycentricity and International Law (Durham: Carolina Academic Press, 1996). Larry Catá Backer, ‘From Moral Obligation to International Law: Disclosure Systems, Markets and the Regulation of Multinational Corporations’, Georgetown Journal of International Law 39 (2008), 591–653.

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scope of the commodities (information) it produces, one that both creates and satisfies demand for its product. This is transparency in its internal context, emphasizing its process-construction (normative) elements and its character as machine rather than as consumable. Transparency as commodity and object suggest its passive qualities. But transparency has an instrumental character as well, one that goes beyond its character as mechanism. Lastly, transparency functions as a mediating mechanism for communication (structural coupling)22 between States, consumers, investors, NGOs and international organizations.23 This mediating role can enhance the visibility of tensions between transparency’s internal role (risk management; legitimacy; norm) and its external role (participation in policy and business decisions; accountability; technique). This chapter considers transparency and business in international law as a matter of the dynamic tension between norm and technique in the management of systems and the masses of the population they serve.24 It is divided into two parts. After this introduction, section 2 critically examines transparency in international and transnational regulatory and governance regimes. It considers both hard and soft law frameworks. Section 2.1 considers public sources of transparency regulation, concentrating on two: the Organization for Economic Co-operation and Development’s (OECD) framework and the recently endorsed Guiding Principles of Business and Human Rights. Sections 2.2 to 2.4 examine transparency and governance beyond the State, considering (i) hybrid governance efforts represented by the International Organization for Standardization (ISO) and Global Compact systems (section 2.2), (ii) private third-party non-corporate governance regimes represented by the Global Reporting Initiative (GRI) and third-party certification programs (section 2.3), and (iii) private corporate governance transparency regimes (section 2.4). Section 3 then examines transparency in action.

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Loet Leydesdorff, ‘Luhmann, Habermas, and the Theory of Communication’, Systems Research and Behavioral Science 17 (2000), 273–288. Larry Catá Backer, ‘Economic Globalization and the Rise of Efficient Systems of Global Private Law Making: Wal-Mart as Global Legislator’, University of Connecticut Law Review 39 (2007), 1739–1784. The potential transnational effects of transparency regimes of domestic legal orders are acknowledged but fall outside the scope of this chapter; e.g. Case, ‘Corporate Environmental Reporting’ 2005 (n 17), 395–401; Dana B. Reiser, ‘Benefit Corporations – A Sustainable Form of Organization?’, Wake Forest Law Review 46 (2011), 591–625, 594.

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Section 3.1 explores environmental disclosure by British Petroleum (BP) before and after the Deepwater Horizon explosion and oil spill of 2010.25 Section 3.2 examines Apple, Inc.’s transparency efforts in the context of managing the labour issues of its supply chains. Section 3.3 critically examines transparency as regulation and action within the framework developed in this introduction, focusing particularly on the way in which the characteristics of transparency as norm, technique and property fundamentally shape both its character and the parameters within which reform is possible.

2. Transparency in International and Transnational Regulatory and Governance Regimes Hard law in the area of corporate governance, and especially corporate disclosure, remains a distant goal.26 On the other hand, important soft law efforts have been emerging since the 1990s.27 The most successful of these seek to leverage social norm systems28 within international and domestic public institutional frameworks that include even nonbinding complaint or remediation structures. This section highlights two important efforts: the OECD’s transparency provisions within its guidelines and principles of corporate governance, and the Guiding Principles of Business and Human Rights. Both are soft law efforts.

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See e.g. ‘The Deepwater Horizon Tragedy: Holding Responsible Parties Accountable’, Hearing Before the Senate Committee on Commerce, Science, and Transportation, 111th Congress, 2nd session, 30 June 2010. Isabelle Duplessis, ‘Soft International Labour Law: The Preferred Method of Regulation in a Decentralized Society’, in International Institute for Labour Studies (ed.), Governance, International Law and Corporate Social Responsibility, Research Series 116 (Geneva: International Labour Organization, 2008), 7–36; Yun Gao, ‘“Secondary Effect” in Implementation of Corporate Social Responsibility in Supply Chain’, in International Institute for Labour Studies (ed.), Governance 2008 (n 26), 155–177. Pierre-Marie Dupuy, ‘Soft Law and the International Law of the Environment’, Michigan International Law Journal 12 (1991), 420–435. UN, Human Rights Council, Promotion of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development: Business and Human Rights: Towards Operationalizing the ‘Protect, Respect and Remedy’ Framework: Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, A/HRC/11/13, 22 April 2009, paras. 48–54.

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2.1

Transparency and the Regulation of Economic Activity in International Soft Law

The OECD has developed three sets of related governance structures that touch on the transparency of enterprises in their operations. These reflect a consensus, among developed States, of the basis for corporate organization in markets-based, welfare-maximizing economic systems. Two of them, the OECD Principles of Corporate Governance (OECD 2004)29 and the OECD Guidelines on Corporate Governance of StateOwned Enterprises (OECD 2005),30 provide a generalized framework of corporate governance, including principle V. on disclosure and transparency practices. In principle V.A., transparency is structured in traditional terms. Principle V.A. speaks to financial and operating results, company objectives, share ownership, remuneration of key agents, related party transactions, risk management, stakeholder issues and governance structures. Principles V.B.–F. provide rules for periodic reporting, independent auditing, effective distribution and the incorporation of advice from financial outsiders. In the case of State-owned enterprise principles, OECD 2005, transparency forms part of a mandate to treat State-owned entities like private enterprises, with principle V.A. emphasizing external reporting on operations, principle V.B. the development of a distinct system of internal auditing, and principle V.C. the provision of external audits in accordance with international standards. Like OECD 2004, the scope of transparency is framed around ‘financial and operating results, remuneration policies, related party transactions, governance structures and governance policies’.31 The Guidelines on Multinational Enterprises (OECD 2011)32 provide a comprehensive framework for guiding the behaviour of economic activity that crosses borders. The object of these Guidelines, among many, is to encourage positive contributions ‘to economic, environmental and social progress and to minimize the difficulties to which their various operations may give rise’.33 Like the Principles of Corporate Governance and Guidelines for State-Owned Enterprises, principle III.2. of the Guidelines for Multinationals focuses disclosure on financial 29 30

31 32 33

OECD, OECD Principles of Corporate Governance (2004) (Paris: OECD, 2004). OECD, OECD Guidelines on Corporate Governance of State-Owned Enterprises (Paris: OECD, 2005). Ibid., annotations to principle V.E. OECD, OECD Guidelines for Multinational Enterprises (Paris: OECD, 2011). Ibid., preface, para. 9.

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matters geared toward shareholder concerns. But because disclosure is grounded on ‘all material matters regarding their activities, structure, financial situation, performance, ownership and governance’ (principle III.1.), enterprises are also ‘encouraged’ to include additional information that ‘could include’ values statements or statements of business conduct, policies or other codes of conduct adopted by the enterprise and performance in relation to those codes, information on internal audits, and information on relationships with labour and stakeholders.34 Taken together the three OECD governance frameworks suggest the outlines of a social norm standard for transparency that are then meant to be enabled – facilitated – through the instrumentalities of States, without invoking the formal structures of the domestic legal orders of participating States.35 But they are also deeply intertwined with other international governance efforts, and principally the UN Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework,36 endorsed in June 2011 by the UN Human Rights Council (UN Guiding Principles),37 which has been incorporated into OECD 2011.38 Like the OECD framework, the UN Guiding Principles posit a soft law framework for business conduct, with respect to which transparency plays a substantial part.39 The UN Guiding Principles posits a three-part framework – a State duty to protect human rights, a corporate responsibility to respect human rights, and an obligation to provide remedies for human rights wrongs. The State duty is grounded on and limited by each State’s legal commitments under international law. The corporate responsibility to respect is built on the social norm obligations of corporations which is defined substantively by the International Bill of Human Rights coupled with the eight International Labour Organization core conventions that form the basis of the Declaration on Fundamental Principles and Rights at Work,40 many of which are not

34 35 36 37

38 39

40

Ibid., principle III.3; see also ibid., commentary, para. 33. See Backer, ‘Governance without Government’ 2012 (n 5). HRC, Guiding Principles, 2011 A/HRC/17/31, 21 March 2011 (n 18). UN, Human Rights Council, Human Rights and Transnational Corporations and Other Business Enterprises, A/HRC/RES/17/4, 6 July 2011. OECD, Guidelines 2011 (n 32), principle IV. E.g. Bill Witherell, ‘Corporate Governance and Responsibility Foundations of Market Integrity’, OECD Observer 234 (2002), 7–9. HRC, Guiding Principles, 2011 (n 18), para. 12.

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binding as law on States.41 The remedial obligation is constructed from the premise that States and enterprises are obligated to provide systems of grievance resolution. Under the UN Guiding Principles, the transparency obligations for States are framed only as part of effective compliance with the legal obligations of States as a matter of both its international obligations and the rules of its domestic legal order.42 Principle 7 encourages States to share information, and to obtain information from non-State actors, in aid of their effective implementation of legislation or the advancement of policy. States are also encouraged to develop national standards, including performance-monitoring rules. It is in the context of the social norm-framing provisions of the corporate duty to respect human rights that transparency assumes its greatest breadth. That breadth is developed through the elaboration of a system of human rights due diligence in principles 17 to 22, the core means through which the corporate responsibility to respect human rights is implemented. Principle 21’s commentary reminds that its purpose is to provide a measure of transparency and accountability to those affected by relevant corporate activity. The methodologies of human rights due diligence are to be built, in part, on the patterns and experience of environmental due diligence already practised by companies.43 Transparency, then, is meant to serve risk management and decision participation, and impact amelioration efforts, by both defining them and by developing techniques for their reporting.

2.2

Transparency and Governance: The Role of Hybrid Public–Private Efforts

Beyond the efforts of international organizations, similar efforts are also being developed by hybrid public–private organizations. Two are considered here – the first focuses on the work of the ISO to develop standards for environmental management and corporate social responsibility, and the second considers the UN Global Compact (UNGC). The ISO 14000 standards target environmental activities. ISO 14000’s transparency provisions target the development of common references 41

42 43

See, Larry Catá Backer, ‘From Institutional Misalignments to Socially Sustainable Governance: The Guiding Principles for the Implementation of the United Nation’s “Protect, Respect and Remedy” and the Construction of Inter-Systemic Global Governance’, Global Business and Development Law Journal 25 (2012), 69–171. HRC, Guiding Principles, 2011 (n 18), para. 3 commentary. Ibid., para. 3 commentary and para. 18.

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for communicating about environmental management to corporate stakeholders – customers, regulators, the public and other stakeholders. ISO 14000 is not directly enforceable in law; its provisions, including its transparency rules, produce behaviour management effects, a method to naturalize environmental impacts assessments into corporate culture through transparency mechanics.44 The ISO’s Corporate Social Responsibility (CSR) standards, ISO 26000, represent perhaps the only complete and coherent attempt at a description of effective CSR practices. It reflects a greater willingness to assert governance authority through soft law measures by international organizations.45 Despite strong criticism that the ISO 26000 family was part of a long-term effort towards mandatory hard law CSR requirements,46 its standards have become important and influential because they are being utilized by important companies and civil society actors. Though structured to provide general guidance across a broad range of subjects, ISO 26000 also provides a greater focus on issues of transparency in its normative and methodological aspects, with part 2 involving the effects of enterprise activity on others. Part 2.24 defines transparency as ‘openness about decisions and activities that affect society, the economy and the environment, and willingness to communicate in a clear, accurate, timely, honest and complete manner’. The corresponding sections of the standard cover transparency and the role of communication in social responsibility, providing detailed criteria against which to measure CSR regimes. A CSR practice that fails to imitate only a single given element of ISO 26000 may completely undermine the effectiveness of the practice, special circumstances requiring customization notwithstanding. The UNGC is conceptually the opposite of the ISO approach to transparency norms and techniques. It is one of the most recognizable and easy-to-follow initiatives relating to gathering and asserting CSR disclosures.47 It seeks to create a corporate accountability 44

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Sanford Gaines, ‘Reflexive Law as a Legal Paradigm for Sustainable Development’, Buffalo Environmental Law Journal 10 (2002), 1–24, 11. Halina Ward, ‘The ISO 26000 International Guidance Standard on Social Responsibility: Implications for Public Policy and Transnational Democracy’, Theoretical Inquiries in Law 12 (2011), 665–718. See e.g. James Roberts, ‘How Corporate Social Responsibility (ISO 26000) Mandates Undermine Free Markets’, Heritage Foundation Backgrounder 2409 (2010), 1–7. Afshin Akhtarkhavari, Global Governance of the Environment: Environmental Principles and Change in International Law and Politics (Cheltenham: Edward Elgar, 2010), 151–192.

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framework around ten conduct-oriented principles, a set of aspirational statements covering subjects of human rights, labour, environmental and anti-corruption values. Though influential, it continues to suffer issues of legitimacy.48 UNGC participating organizations are required to provide an annual Communication of Progress indicating via self-reporting their continued aspiration to greater adherence to the Ten Principles.49 This self-reporting is mandatory and meant to protect the integrity of the Global Compact system as applied.50 Communications of Progress ‘should be fully integrated in the participant’s main medium of stakeholder communications, including (but not limited to) a corporate responsibility or sustainability report and/or an integrated financial and sustainability report’.51 A simple form is provided for organizations, although larger companies are expected to incorporate the Communication of Progress as part of the company’s larger, annual communications to the press, public and investors. Failure to comply can result in listing the company as ‘noncommunicating’ or ‘inactive’,52 which has been employed against 600 companies for failing to submit Communications of Progress.53 Expulsion is the most extreme sanction.54 The system has been criticized either because NGOs have been effectively delegated responsibility for monitoring and reporting conformity to the UNGC standards,55 or because the standards are so vague that it can provide companies with

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See Evaristus Oshionebo, ‘The UN Global Compact and Accountability of Transnational Corporations: Separating Myth from Realities’, Florida Journal of International Law 19 (2007), 1–38, 20–30. UN, Global Compact, ‘UN Global Compact Policy on Communicating Progress’, updated 25 February 2011, available at: www.unglobalcompact.org. Surya Deva, ‘Corporate Complicity in Internet Censorship in China: Who Cares for the Global Compact or the Global Online Freedom Act?’, The George Washington International Law Review 39 (2007), 255–319, 298. UN, Global Compact, ‘Global Compact Policy’ 2011 (n 49), 3. Ibid., 1 (requiring a statement of commitment, description of practical actions, and description of outcome measures). Akhtarkhavari, Global Governance of the Environment 2010 (n 47), 162. See e.g. Global Compact Critics, ‘Great News: Global Compact Expels Company that Refuses to Engage in Dialogue With Activists’, 6 June 2011, available at: http://globalcompactcritics.blogspot.com/2011/06/great-news-global-compact-expels.html. Jonathan Cohen, ‘Socially Responsible Business: Global Trends’, in David Maurrasse/ Cynthia Jones (eds.), A Future for Everyone: Innovative Social Responsibility and Community Partnerships (New York: Routledge, 2003), 3–20.

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a low-cost transparency cover for bad acts,56 so-called bluewashing,57 as a result of which the system has been changed to protect its integrity.58

2.3

Transparency and Governance – The Role of External Corporate Governance Regimes

Beyond these public or hybrid efforts, global civil society actors have also created important structures for the transparency responsibility of private actors that also tie on to those public efforts. Two are considered here; the first is the Global Reporting Initiative (GRI)59 CSR mechanisms, and the second is the transparency elements in product certification programmes. The GRI is an NGO that produces and markets ‘a comprehensive sustainability reporting framework that is widely used around the world’.60 Transparency is central to the development of the GRI standards.61 Where the UNGC represents the public communication of broad, aspirational and ultimately not very demanding disclosures (to the extent they may be called such), the GRI presents a willingness to command a tremendously greater level of detail in its requests for disclosure. In place of the general principles approach of the Global Compact, the GRI Sustainability Reporting Guidelines consist of a complex system of disclosure elements, described as ‘performance indicators’, which can be quantitative or qualitative and reflect issues and elements of corporate behaviour at practically every level.62 Each performance indicator has a specified code that allows knowledgeable researchers to rapidly determine the degree and nature of the organization’s response to each indicator. For additional customization, there are ‘sector supplements’ reflecting corporate activity in specific industries. 56

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These criticisms have spawned organized critical engagement with the UNGC and its institutions. See e.g. Global Compact Critics, http://globalcompactcritics.blogspot.com. Sean D. Murphy, ‘Essay in Honor of Oscar Schachter: Taking Multinational Corporate Codes of Conduct to the Next Level’, Columbia Journal of Transnational Law 43 (2005), 389–433, 413; Alexis M. Taylor, ‘UN Reports: The UN and the Global Compact’, New York Law School Journal of Human Rights 17 (2001), 975–984, 981. Jean-Philippe Therien/Vincent Pouliot, ‘The Global Compact: Shifting the Politics of International Development?’, Global Governance 12 (2006), 55–75. GRI, ‘Global Reporting Initiative Sustainability Reporting Framework G3.1 Guidelines’, 2011, available at: www.globalreporting.org. GRI, ‘About Us’, available at: www.globalreporting.org. GRI, ‘G3.1 Guidelines’ 2011 (n 59), 2. 62 See, GRI, ‘G3.1 Guidelines’ 2011 (n 59).

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Disclosure is self-directed based on a formula that produces an ‘application level’, a letter grade which the organization can promulgate signifying its degree of performance. Alongside this complex system of self-adjudication exists a procedure for a GRI Application Level Check, a means by which organizations can ask the GRI to evaluate and confirm their application level. Beyond even this level of certification, organizations which seek out External Assurance, analysis by a third-party confirming their stated application level and the presentation of their disclosure, may place a plus symbol next to their application level when promoting their level of disclosure compliance. There is much the same flavour of the GRI’s approach to the design and implementation of reporting and disclosure. Through its devotion to granularity, however, the GRI framework unfortunately also sacrifices its communicability. Complexity also makes GRI virtually indecipherable to the lay public, and assessment costly and complicated. While GRI is a well-known and influential standards-developing project, including disclosure standards for environmental activity, there are a number of other NGOs in the emerging process certification and measurement metrics industry. The object of these organizations is to develop not merely the mechanics of reporting, but also the standards and methodologies for measurement in specific fields. Some provide more general structures. These include, for example, the AccountAbility stakeholder engagement standards.63 Some have arisen in the context of the development of CSR focus on social and environmental issues. One is the Global Impact Investing Ratings System.64 Others target specific subcategories of corporate economic activity, for example the new benefit corporations discussed above.65 ‘The proliferation of codes of conduct and other related activities in the areas of environmental and social management, and auditing, has created a rapidly growing sector of consultants and verifiers who have an interest in the growth of these

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AccountAbility, AA1000 AccountAbility Principles Standard 2008 (London/Washington DC: AccountAbility, 2008). ‘GIIRS (. . .) is a comprehensive and transparent system for assessing the social and environmental impact of companies and funds with a ratings and analytics approach analogous to Morningstar investment rankings and Capital IQ financial analytics.’ Global Impact Investing Ratings System, ‘Driving Capital to Impact’, available at: www.giirs.org/. B Lab, a non-profit NGO, has been developing a certification system for benefit corporations. See B Lab, ‘B Corp Certification Overview’, available at: www.bcorporation.net.

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activities.’66 A significant criticism of these processes has been the charge of their use as ‘greenwashing’, the potentially deceptive use of the appearance of compliance with environmental norms.67

2.4

The Role of Internal Private Corporate Transparency Frameworks

Beyond these third-party efforts, corporations and other actors have taken ownership of transparency as well, designing their own transparency structure for internal consumption and external communication. Industry leaders now recognize corporate social responsibility reporting as a compelling social-norm obligation of business.68 The 2011 International Corporate Responsibility Reporting Survey by Klynveld Peat Marwick Goerdeler (KPMG)69 reported that ‘[n]inetyfive percent of the 250 largest companies in the world (G250 companies) now report on their corporate responsibility (CR) activities, two-thirds of non-reporters are based in the US’.70 John Ruggie has criticized these efforts because companies that adopt codes may not support them.71 According to KPMG, another problem is communication to stakeholders – both as to the content and form of disclosure.72 Most of these codes stand alone; some may have only external application. Current scholarship has not yet produced a common theoretical approach.73 Although numerous individual studies of disclosure 66

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Rhys Jenkins, ‘Codes of Conduct: Self Regulation in a Global Economy’, 9 April 2001, available at: http://digitalcommons.ilr.cornell.edu. See generally Jacob Vos, ‘Note, Actions Speak Louder than Words: Greenwashing in Corporate America’, Notre Dame Journal of Law, Ethics and Public Policy 23 (2009), 673–697. KPMG, ‘Corporate Responsibility (CR) Reporting Has Become the De Facto Law For Business’, 2011, available at: www.kpmg.com. KPMG, ‘KPMG International Corporate Responsibility Reporting Survey 2011’, 2011, available at: www.kpmg.com. KPMG is a global audit, tax and advisory services firm. Ibid., 6. John Ruggie, ‘Human Rights Policies and Management Practices of Fortune Global 500 Firms: Results of a Survey’, 1 September 2006, available at: http://198.170.85.29/Ruggiesurvey-Fortune-Global-500.pdf. Ibid., 22–27. EU, Commission of the European Communities, Communication from the Commission Concerning Corporate Social Responsibility: A Business Contribution to Sustainable Development, COM/2002/0347 final, 2 July 2002, 3. European actors have been leading efforts to institutionalize harmonization efforts. See e.g. CSR Europe, ‘About Us’, available at: www.csreurope.org/pages/en/about_us.html (‘Strengthen Europe’s global leadership on CSR by engaging with EU institutions and a wider range of international

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practices in specific locales or under specific reporting regimes have been produced, a common language of study or effect has not yet emerged, with few researchers attempting to make broad comparisons between governance systems or across different reporting mechanisms.74 The result of this lack of academic, political or doctrinal consensus is an environment in which a wide array of different CSR doctrines, schemes and initiatives are employed,75 with cultures of informal convergence developing around functionally differentiated production sectors.76 Private corporate CSR systems can lack a consistent aspirational vocabulary even within a single corporate entity. Popular private CSR practices are difficult to determine, often telling more about the social setting than effectiveness or commonality.77 In terms of invoked responsibility, codes of conduct may simply reaffirm the corporation’s adherence to a legal minimum standard, evoke aggressive or idealistic additional moral (and putatively legal) responsibility, or call for communication and consensus-building activities that are outside of and not directly impacting upon the corporation’s core functions.78 Corporations may choose to imitate or compete both within and between commercial sectors as well, sometimes evidencing an imperfect understanding of the language invoked. The net result of this uncertain environment is that corporate actors can produce tremendous changes in their own responsibilities or public image through the function of their private CSR creations, sometimes in highly unplanned ways. One example of these idiosyncratic

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players (. . .) Shape European CSR policy development (. . .) Engage with CSR Europe’s National and leading global CSR organisations’). See e.g. Denis Cormier/Irene M. Gordon, ‘An Examination of Social and Environmental Reporting Strategies’, Accounting, Auditing and Accountability Journal 14 (2001), 587–617. See e.g. KPMG International, ‘KPMG International Survey of Corporate Responsibility Reporting 2008’, 2008, available at: www.kpmg.com, 13; on this diversity, see e.g. Joe W. Pitts III, ‘Corporate Social Responsibility: Current Status and Future Evolution’, Rutgers Journal of Law and Public Policy 6 (2009), 334–433; John M. Conley/Cynthia A. Williams, ‘Engage, Embed and Embellish: Theory versus Practice in the Corporate Social Responsibility Movement’, Journal of Corporation Law 31 (2005), 1–38; Ilias Bantekas, ‘Corporate Social Responsibility in International Law’, Boston University International Law Journal 22 (2004), 309–348. Walter Aerts/Denis Cormier/Michel Magnan, ‘Intra-Industry Imitation in Corporate Environmental Reporting: An International Perspective’, Journal of Accounting and Public Policy 25 (2006), 299–331, 300. Conley/Williams, ‘Engage, Embed and Embellish’ 2005 (n 75), 9–10. Bantekas, ‘Corporate Social Responsibility’ 2004 (n 75), 323.

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self-starting policies is the supply chain transparency policies of Apple Incorporated, as detailed further below.

3. Transparency in Action The development of international frameworks for transparency in the context of corporate governance has had significant effect on corporate practice. Two examples are offered here, the first looking to environmental transparency by BP in the context of the Deepwater Horizon disaster79 and the second to the transparency of corporate activity supply chain impacts in Apple, Inc.

3.1

British Petroleum and Environmental Impacts

The environmental reporting of BP during the course of the Deepwater Horizon spill illustrates the possibilities and limits of transparency grounded in public international soft-law frameworks. The initial accident, the subsequent failure to immediately prevent the leak, and a variety of controversies, including the attitude of BP executives toward the spill, restitution payments to those whose livelihoods were lost or reduced by the disaster, and allegations of ‘greenwashing’ regarding subsequent behaviour by the petroleum company, all received tremendous amounts of play in media around the world.80 BP responded to scrutiny by promising an increased degree of transparency regarding its response to the spill and its ongoing clean-up efforts.81 Before the spill, BP enjoyed an international reputation as a model of corporate transparency done right, winning over ‘many of the industry’s toughest skeptics, including environmental groups and social investing mutual funds’.82 It was rated routinely as among the most transparent companies in assessments of governance and transparency.83 BP’s 79

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On the Deepwater Horizon Oil Spill, see e.g. Lawrence C. Smith Jr./Murphy Smith/Paul A. Ashcroft, ‘Analysis of Environmental and Economic Damages from British Petroleum’s Deepwater Horizon Oil Spill’, Albany Law Review 74 (2010–2011), 563–585. See e.g. Miriam A. Cherry/Judd F. Sneirson, ‘Beyond Profit: Rethinking Corporate Social Responsibility and Greenwashing after the BP Oil Disaster’, Tulane Law Review 85 (2010), 983–1038. For its most pronounced declarations in this regard, see e.g. the BP-created Gulf of Mexico Research Initiative, available at: www.gulfresearchinitiative.org/. Richard W. Oliver, What Is Transparency? (New York: McGraw-Hill, 2004), 61. Ibid., 61–63.

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annual reports contained substantial reporting on social and environmental issues. Its Communications of Progress for the years 200984 and 201085 conformed to UNGC requirements. Sustainability reports reflect an attempt to simultaneously allay concerns regarding the company’s environmental practices, entice potential investors, and demonstrate the company’s commitment to fulfilling the requirements of the GRI and UNGC reporting standards.86 The report represents a sort of responsibility optics extravaganza, a magazine-format accounting of BP’s responsible approach to business. The report is further peppered with links to a BP sustainability hub site, which functions as an electronic version of the Communication of Progress’s market/informational approach. Central to the report was a listing of the State and private reporting initiatives to which the company subscribed.87 The 2010 report also includes an inset statement by the vice-president of Sustainability, discussing the sincerity of BP’s dialogue with NGOs and stakeholders in the period following the explosion on Deepwater Horizon. Both the 2009 and 2010 sustainability reports also include the results of an independent assurance qua the optional mechanism described by the GRI. The BP reports suggest a focus both on norm and technique. These are extensions of the BP marketing strategy; a continuous, highly developed and relentlessly focused effort to persuade rather than to inform, and to employ disclosure and assessment metrics in harmony with marketing objectives. This approach is particularly stark in the 2010 report. The same simplified statistics presented in the 2009 report are available closer to the beginning of 2010 report, emphasizing to the sceptical viewer that this is a document of substantive evidence. Rather than downplaying the disaster as less sophisticated marketers might prefer to do, BP fully owned the environmental disaster, placing the oil spill and photographs of BP’s clean-up efforts at the very beginning of the report, and changing

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BP, ‘Sustainability Review 2009’, available at: www.unglobalcompact.org. BP, ‘Sustainability Review 2010’, available at: www.unglobalcompact.org. As an example of this, in the 2009 Communication of Progress graphs describing the frequency of recordable injuries, normalized greenhouse emissions, employee satisfaction and super major oil production (all terms defined separately in 6-point font footnotes or parentheticals), were presented on the same page, each accompanied by a paragraph describing the positive interpretation the reader should derive from the charts. BP, ‘Sustainability Review 2009’ (n 84), 7. BP, ‘Sustainability Review 2010’ (n 85), 40.

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the language and tone of much of the document to reflect how BP aspired to become stronger and more prepared in response to the incident, through changes of policy that the company aspired to ensure would occur at some point in the future. The tension between the marketing and monitoring focus of the reports was reflected in the explanation of the independent assurance evaluator’s report.88 While the 2010 report is longer, and devotes a great deal of imagery and descriptive language to the Deepwater Horizon disaster, there appeared to be little effort to increase the actual detail of disclosed information or statistics regarding the sustainability performance of the company. Transparency as data distribution was inadequate, and communication as a means of constructing a normative structure for BP both came up short for third parties. Self-serving transparency and thirdparty communication were not harmonized. BP remains on the Global Compact Learner Platform until it prepares its 2013 Communication of Progress. ‘Communication, or lack thereof, was one of BP’s largest setbacks during the Deepwater Horizon Spill. (. . .) Through its communication disaster, BP showed the importance of implementing a new crisis communication strategy to include a digital response’.89

3.2

Apple, Inc. and Supply Chain Management Transparency

Multinational corporations that forgo participation in the UNGC or similar independent reporting frameworks sometimes choose to maintain internally developed reporting and normative standards. Apple, Inc. is not a UNGC member, and had resisted pressure to disclose the effects of its manufacturing process or open supplier factories to auditors. Indeed, Apple’s secrecy regarding its manufacturing and supplier arrangements had attracted media attention in the wake of violent incidents at Apple supplier factories in China and other Asian countries.90 In response to an early criticism by Greenpeace demanding greater transparency regarding the use of toxic chemicals in Apple products, a letter was published, signed by Steve Jobs,91 providing limited details of Apple’s internal efforts to reduce and remove toxic 88 89

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Ibid., 10. Matt Gobush, ‘Communication Strategies – Lessons Learned, Environmental Communication’, 19 April 2011, available at: http://ninaflournoy.wordpress.com. See e.g. Charles Duhigg/David Barboza, ‘In China, Human Costs are Built into an iPad’, The New York Times (25 January 2012). Steve Jobs, ‘A Greener Apple’, available at: http://images.apple.com.

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substances from its products.92 This initiated a limited CSR effort by Apple, demonstrated by the online publication of a variety of different documents that imitated elements of independently governed transparency systems, while reassuring shareholders that the corporation could safely and ethically monitor its own practices. Apple has gradually expanded and changed its online CSR documentation, usually in response to criticism of its supply chain oversight practices, especially its environmental and employment practices. Although this material is now being supplanted by third-party oversight, Apple’s self-managed corporate governance reporting is a useful means of assessing the potential advantages and risks facing companies that choose a ‘go-it-alone’ approach.93 Apple’s CSR efforts are institutionalized through a system of regulatory contracts and standards that define Apple’s relationships with its supply chain partners.94 These then serve as the normative foundation from which CSR transparency efforts are developed. Outwardly, Apple’s reporting is similar to that of BP: glossy commentary, assuring a credulous target demographic that the company is doing everything it can to live up to aspirational policy statements. Yet, where BP consolidated CSR material into a single report, and provided clear GRI index scores (even if score translation was an arcane practice), Apple presents a patchwork of disjointed document files, making even casual perusal difficult. The layout of the website is bifurcated between environmental concerns and supplier activities, without any unified organization. This leads to the presence of outdated and sometimes conflicting information.95 Still, Apple provides something of a useful roadmap to its norms, and its

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See Jim Dalrymple, ‘Steve Jobs Outlines Plans for a “Greener Apple”’, 2 May 2007, available at: www.macworld.com. Another firm making this approach is Wal-Mart. See e.g. Yu Xiaomin/Pun Ngai, ‘Walmartization, Corporate Social Responsibility, and the Labor Standards of Toy Factories in South China’, in Anita Chan (ed.), Walmart in China (Ithaca: Cornell University Press, 2011), 54–70. Apple, ‘Supplier Responsibility Progress Report’, available at: www.apple.com; reports covering activities from the years 2006–2011. Apple, ‘Apple Supplier Responsibility 2012 Progress Report’, available at: http://images.apple.com/supplierresponsibility/ pdf/Apple_SR_2012_Progress_Report.pdf; prior reports may be obtained by altering year in address. See e.g. links at Apple, ‘Apple and the Environment: Frequently Asked Questions’, available at: www.apple.com; or the incorrectly labelled ‘Apple and the Environment: Apple 2008 Environmental Update’, available at: www.apple.com.

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responses to complaints that it failed to monitor and correct breaches of those norms among supply chain partners. In the partitioned area of Apple’s public site devoted to supplier practices, the most heavily promoted transparency document is the Supplier Code of Conduct, which acts as an overarching statement of policy, guiding the content of other representations made by the company regarding its stakeholder impacts.96 The Code of Conduct emphasizes that it ‘is modeled on and contains language from’ OECD, UNGC, ISO 14001 and other venerable policy standards.97 Each year’s report applies similar aspirational language, but appears to hold the company to a different standard of disclosure, an issue addressed in the Supplier Responsibility Progress 2012 report, which greatly increased the rigour of98 supplier site audits.99 The report represented an implicit concession by Apple that previous reports were inadequate, while ensuring that the company would continue to manage the perception that future revelations about its supplier chain were viewed in a context influenced by Apple’s behavioural ethos. Third-party entities have investigated Apple’s business practices, in particular employment and environmental practices at locations along the manufacturer’s supply chain. But Apple’s control of its disclosure has made these monitoring and stakeholder participation and evaluation efforts difficult. Consider, for example, the 2007 report by the Stichting Onderzoek Multinationale Ondernemingen (SOMO), a non-profit organization whose activities are funded in part by the Dutch government, and which organizes and interacts with other environmental and labour-oriented corporate transparency organizations.100 By aggregating Apple’s CSR policy statements and other public disclosures, then comparing them with employee interviews at several supplier factories around the globe, SOMO demonstrated that a gap existed between reporting and reality.101

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Apple, ‘Apple Supplier Code of Conduct’, January 2012, available at: http://images. apple.com. Ibid., 1 and 7–8. Steven Greenhouse, ‘Critics Question Record of Monitor Selected by Apple’, The New York Times (14 February 2012), B1. Apple, ‘2012 Progress Report’ (n 94), 4. Stichting Onderzoek Multinationale Ondernemingen, ‘About SOMO’, available at: http://somo.nl. Michiel van Dijk/Irene Schipper, ‘Apple CSR Company Profile’, February 2007, available at: http://somo.nl, 4.

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In the face of labour-related scandals, this pressure produced results. In 2012 Apple disclosed an almost complete list of its direct suppliers for the first time, and announced their new membership in the Fair Labor Association (FLA), an NGO originally created by clothing manufacturers to monitor for sweatshop conditions.102 Though FLA, while not free from criticism itself,103 will impose its own requirements upon Apple’s supply chain management, limiting its corporate autonomy, FLA reports will exist alongside Apple’s own reporting and policy statements, which will continue to affect both the techniques and normative construction of Apple’s transparency efforts. Although Apple was able to use the weight of its CSR policies to limit the consequences of early scandals,104 networked relationships with an outside provider of transparency norms and monitoring was deemed to be an effective strategy to blunt criticism and provide information satisfactory to markets and consumers. Enjoying a secure market position and high market-power control over its manufacturing supply chain, disclosure of factory conditions offers little benefit to the company in the absence of public outcry or criticism. International corporations are frequently able to maintain effective private CSR standards for an extended period, can use them to leverage and enforce changes in industrial practice, effectively competing with watchdogs and third-party monitors to define the scope of legitimate corporate action, while leveraging them to other market effects.105 Companies occupying this state of dominance can also dictate the practices of their suppliers and competitors by altering the scope of acceptable corporate behaviour.106 At a minimum, companies facing criticism can use the competing policies of their CSR governance to blunt and control the scope of public criticism.107 This is a process

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Stanley James/Adam Satariano, ‘Apple Opens Suppliers’ Doors to Labor Group After Foxconn Worker Suicides’, 13 January 2012, available at: www.bloomberg.com. Greenhouse, ‘Critics Question Record of Monitor Selected by Apple’ 2012 (n 98). Larry Catá Backer, ‘Corporate Social Responsibility and Voluntary Codes: Apple, Its Stakeholders, and Its Chinese Laborers’, 16 June 2006, available at: http://lcbackerblog. blogspot.com. Another firm making this approach is Wal-Mart. See e.g. Xiaomin/Ngai, ‘Walmartization’ 2011 (n 93), 63–70. Larry Catá Backer, ‘On the Autonomous Regulatory Authority of Corporations in Global Private Markets: Governance Between Corporation and State’, 28 March 2011, available at: http://lcbackerblog.blogspot.com. Backer, ‘Corporate Social Responsibility’ 2006 (n 104).

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that may continue as Apple gradually shifts to reporting governed by, or in compliance with, third-party practices. Apple’s response to thirdparty criticism did, however, present difficulties of design unforeseen by the company’s directors. Employees tasked with designing the company’s CSR practices faced the unenviable task of publicly presenting material that mollified the same demands as expert-crafted, thirdparty disclosure systems, without binding the company to external doctrine.

3.3

The Problem of Transparency and Business in International Law and Beyond Law

The relationship between international private transparency frameworks and their implementation by large enterprises illustrates the ways in which the discussion of accountability and participation is manifested through a discourse and implementation of systems of transparency. It also illustrates the extent to which transparency is not mere technique, but an increasingly powerful source of norm, strategically managed through technique for data gathering and assessment. It underlies the fundamental tension between transparency as a means to inform, as a means of making internal management more efficient, and as a means of extending the participation of corporate stakeholders. But it also shows how transparency systems are increasingly becoming networked in a way that limits incoherence and mediates difference among systems that sit atop national disclosure regimes while are more narrowly focused on financial performance rather than social, environmental or human rights impacts analysis. Within this soft polycentric universe, the nature of transparency as commodity and object becomes clearer. As commodity, the focus is on the competing systems of transparency themselves as they both work to create integrated systems and then bend those systems to appeal to potential users. As object, every one of those systems can be strategically accessed to produce bundles of information that mediate between the desires of companies, like Apple and BP in the examples above, and those of outside stakeholders. Yet it is only when transparency is understood from within notions of property that its instrumental and process characteristics become clearer. When one speaks of property in this context, it is most useful to understand it as control of the production, use and exploitation of information. Apple, for example, indicated this precise approach to information involving its supply chain practices when it sought to develop its own

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reporting metrics. This ownership/exploitation characteristic can thus add a substantial dimension to the understanding of transparency. That dimension helps explain some of the tensions and difficulties of transparency as norm and process, as well as the intractability of those tensions and the strength of obstacles to their resolution, in eight identifiable ways. First, in the absence of an audit-like facility there is virtually no way to test the authority and completeness of data generated, much less conclusions based on data. The GRI and OECD optional independent auditing options seek to address this problem, but in fact they tend to introduce a new set of separately beholden and interested actors. Second, the generation of data does not suggest the scope of its distribution. Ownership here is revealed in its most proprietary aspects – trade secrets and other business secrets represent sometimes critically important data the ownership relationship of which can determine the extent to which it must be revealed. All transparency frameworks respect these boundaries. Apple indicated this precise approach to information involving its supply chain practices when it sought to develop its own reporting metrics. Third, data generators control its use with strong effects on the ability of outsiders to assess corporate activity or participate in decision-making or acquire comprehensive information. But this also applies to entities like GRI that control categorization and assessment. Both own their product (information or assessment matrices) and both use that to control their use. Fourth, ownership power may be reduced by outside transparency actors, both public and private, but they have no real control over the generation of information and little power to audit. Data gatherers accede, like Apple in joining FLA, only when market pressures require it, or otherwise where directed by a government rule. Fifth, entity self-generated standards empower them to manage the data-driven construction of their reality. Most transparency frameworks have strong purposive components coupling data with specific objectives and leaving the provision to the data harvesters. Apple is a primary example of the benefits of this approach, as is seen also in the selective, voluntary nature of the GRI indices, as well as the non-certifying nature of the ISO standards. Sixth, data ownership may itself limit the ability of outsiders to exploit data for its own profit. Apple’s proprietary approach to its CSR information is one example; the sale of GRI and ISO metrics and standards is

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another. Ownership limits participation by stakeholders who do not purchase data or assessment. Seventh, data may be preserved or destroyed by its owners. At the same time, the data generator also bears the cost of generation, preservation and distribution. As a consequence the long-term utility of data is compromised, except for data that has been publicly distributed. Eighth, ownership motions deepen the asymmetric relationship between data generators and outside data recipients. Where the objective of transparency is to enhance participation (in corporate decisionmaking or in public participation) the quality of that participation can be managed by the quality of the data produced. Apple’s and BP’s proprietary interest in and control of data attests to this effect and its consequences for stakeholders.

4. Conclusion This chapter has considered the problem of transparency in the private sector within the triangular relationship between governmentalization, mass politics as the basis of the authenticity and legitimacy of institutional action, and the ‘statistics’ which serve as the form that transparency takes in the twenty-first century. I have sought to demonstrate, through a brief review of governance instruments at the international level and the private efforts of international economic actors, that transparency has two basic instrumental functions. First, transparency functions as a mechanism for accountability, and for risk management, of autonomous private governance systems beyond the State. Second, it serves as a mediating mechanism for communication between public and private, internal and external, stakeholders. But transparency also serves normative objectives: to decide with respect to human or institutional conduct what and how to reveal, to monitor it, and to determine the parameters of that exercise, is effectively to guide that conduct. Especially in the field of private governance, transparency is both commodity and object. But underlying all of these intersections is that of the ideology of property. It may be useful, then, to consider transparency through the lens of transparency as property. When transparency is understood from within notions of property, its instrumental and process characteristics become clearer. Lastly, transparency in private law at the international level suggests that it is unlikely that systems of transparency, and especially the underlying normative presumptions that help structure its form and objectives, will be harmonized.

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Transparency regimes contribute to the moves towards polycentricity in governance, accelerating the shift of governance power from the State. Removed from the orbit of law and the State, transparency becomes both an essential mechanics for the articulation of alternative normative standards for international organizations and civil society elements, and a structure through which to protect the integrity of private governance systems beyond the State.

19 Power and the Public: The Nature and Effects of Formal Transparency Policies in Global Governance Institutions megan donaldson and benedict kingsbury

1. Introduction In 1956 the eminent French international lawyer Paul Reuter urged the construction of an international law of secrecy, to be built from general principles of law, and particularly from the spirit animating various municipal laws concerning secrecy.1 Surveying instances in which questions of the bounds of secrecy had recently presented themselves, from States’ refusals to provide documents or furnish witnesses before international tribunals, to conflicts within and between European institutions over access to particular materials, he traced the way in which secrecy or lack of secrecy had emerged as a problem in tandem with the proliferation of supra-State institutions. For Reuter, organizations had an inner life of which secrecy was a necessary corollary; indeed some measure of secrecy regarding the inner workings of these bodies was crucial for their autonomy. This sensibility has changed radically in recent decades. Openness and transparency are now widely seen as important elements of institutional legitimacy, for global institutions as much as for domestic authorities, and when municipal law is referred to in international organizations it is usually as a source of examples not for laws imposing secrecy, but for freedom of information regimes and legal rights that provide for more institutional openness. Each of these regimes of course also legitimates very considerable secrecy, and secrecy is routine in particular in much

1

Paul Reuter, ‘Le droit au secret et les institutions internationales’, Annuaire français de droit international 2 (1956), 46–65.

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extra-national activity concerning security, finance, crime control, or business. However prevalent it is in practice, though, few governance institutions announce a ‘secrecy’ policy (as opposed to a policy of privacy for individuals), and the literature and public discussion is overwhelmingly couched in terms of transparency. Secrecy appears in the discourse as, at best, a sort of residual concession in the interstices of regimes ostensibly oriented to disclosure. The transition from Reuter’s Cold War perspective to the dominant presumption of transparency today is only a fragment of longer and more complex histories, in which struggles over information, within and beyond the State, have had profound implications for structures of material and discursive power, and for relations of political authority. In a crude way, however, this transition can be understood as the product of at least two related developments. The first is a greater focus on, and contestation of, secrecy in institutions of the democratic State, particularly as the governance roles of executive agencies and of other experts have expanded.2 The second is a further shift in the locus of decisionmaking authority to, or at least its diffusion through, new institutions beyond the State, and the growing imbrication of transnational, regional and domestic legal and administrative processes.3 The growth of governance beyond the State has had multiple effects for access to information. International organizations and international law have been important channels for the dissemination of norms of access to information applicable to governments and public authorities. Requirements that States make certain information available have been deployed in inter-State regimes for trade, investment, environmental protection, human rights and more. Many global institutions and initiatives, from certification regimes for products to social and sustainability reporting for corporations, aim to make visible supply chains, transactions and labour practices that would otherwise not be matters of public knowledge. However, the very proliferation and increasing reach of global governance institutions has also created new concerns about insufficient access to information and the potential weakening of democratic

2

3

The increasing importance of technical expertise in government was a concern as early as the interwar period. See e.g. Alfred Zimmern, ‘Democracy and the Expert’, Political Quarterly 1 (1930), 7–25. See e.g. Sabino Cassese et al. (eds.), Global Administrative Law: Cases, Materials, Issues (Rome/New York: Istituto di Ricerche sulla Pubblica Amministrazione/Institute for International Law and Justice, 3rd edn, 2012).

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accountability within polities. These concerns are manifest in demands for greater ‘transparency’ regarding the interactions between governments and global governance institutions, and between different governments under the auspices of these institutions, as well as regarding decisions and policies formulated within the institutions themselves. At its broadest, ‘transparency’ in global governance institutions embraces matters as diverse as the publication of documents, protocols for who may participate as observers in an institution’s work, investigative powers of internal review bodies, and approaches to the ownership and management of archives. This chapter examines just one part of the picture: the emergence of a (still limited and partial) norm of transparency in various classes of global governance institution, as manifested in the spread among these institutions of general policies regarding access to information. Section 2 surveys the extent to which such policies currently exist and the diffusion of such policies in some key global governance institutions, and comments on the terms and diffusion patterns. Section 3 considers the extent to which these developments may be understood as part of an emergent ‘global administrative law’ of transparency. Formal policy instruments may bear only a tangential relation to a much more complex reality of how information is generated and handled and, as transparency policies generally make available only documents that already exist, the kinds of information that may be obtained under even the most expansive policy will be constrained by the institution’s approach to gathering and recording information in the first place. That fundamental fact notwithstanding, we focus this study on general transparency policies purporting to make information available regardless of the audience’s involvement in any particular issue, as these are the most far-reaching manifestations of a new embrace of transparency. In addition to their concrete effects, they channel normative argument about transparency in particular directions, provide a site for reimagining the relations between actors in global governance, and shape arguments about what greater demands should be made of global governance institutions in future. In section 4, we propose a series of hypotheses about the effects that transparency policies and other measures to ensure greater transparency of global institutions may have for States, within States, for the institutions, and for non-State actors. In section 5 we point to some ways in which transparency might further shape structures of authority in the global order, perhaps by enhancing a dimension of publicness in global governance institutions.

transparency in global governance institutions 505

2.

Transparency in Global Governance Institutions

Changes in practice and norms with regard to transparency illustrate the interconnections between global, regional and national governance that have underpinned the positing of a ‘global administrative space’.4 However, despite these interconnections, most legal obligations touching on the transparency of global governance institutions (other than special cases like EU regulations) are still addressed, in the first instance, to governments or national public authorities, rather than to global institutions directly.5 Furthermore, as will be seen, conceptions of transparency in global governance institutions appear indebted to the model of State freedom of information laws. Accordingly, we first briefly survey provisions applicable to State governments and public authorities, in domestic law and international law, which may have some effect on the transparency norms applicable to global governance institutions.

2.1

Obligations of State Governments and Public Authorities with Possible Effects for Global Institutions

The growing number of State freedom of information laws,6 often buttressed by international law requiring some form of access-to-information regime,7 and by various model laws and advisory texts developed in 4

5

6

7

Benedict Kingsbury/Nico Krisch/Richard B. Stewart, ‘The Emergence of Global Administrative Law’, Law and Contemporary Problems 68 (2005), 15–61. See EU, Regulation (EC) No. 1049/2001 of the European Parliament and of the Council of 30 May 2001 Regarding Public Access to European Parliament, Council and Commission Documents, OJ 2001 No. L145/43, 31 May 2001. See Andrea Bianchi, ‘Introduction: On Power and Illusion. The Concept of Transparency in International Law’, chapter 1 in this volume. Despite the global trend, adoption of such laws is generally the result of domestic struggles, sometimes with distinct political and cultural inflections. See John M. Ackerman/Irma E. Sandoval-Ballesteros, ‘The Global Explosion of Freedom of Information Laws’, Administrative Law Review 58 (2006), 85–130, 109–115; Greg Michener, The Surrender of Secrecy: Explaining the Emergence of Strong Access to Information Laws in Latin America (Cambridge University Press, forthcoming); country case studies in Ann Florini (ed.), The Right to Know (New York: Columbia University Press, 2007), part 1. See Council of Europe Convention on Access to Official Documents, 18 June 2009, CETS No. 205 (not yet in force); International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171, art. 19; UN, Human Rights Committee, General Comment No. 34, CCPR/G/GC/34, 12 September 2011, paras. 18–19; UN, Commission on Human Rights, Civil and Political Rights, Including the Question of Freedom of Expression: The Right to Freedom of Opinion and Expression: Report of the Special Rapporteur, Ambeyi Ligabo, E/CN.4/2005/64, 17 December 2004, paras. 39–44; see also Convention for the Protection of Human Rights and Fundamental Freedoms, 4

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global or regional institutions,8 has created – in formal terms at least – a web of obligations for governments and public authorities to proactively publish, or provide on request, information about their own engagement with inter-State bodies or networks of foreign regulators.9 As some domestic freedom of information laws may be invoked by anyone, regardless of their nationality, interested parties in States without freedom of information laws may in theory be able to use laws in another State to access information about transnational discussions affecting them. Other domestic constitutional or legislative provisions may require the disclosure of certain information by global institutions, or by States, where State public authorities implement or enforce measures required by global institutions.10 Domestic constitutional structures (such as the ability of legislatures to attach conditions to appropriations for international institutions) may also have a practical impact in fostering measures for the transparency of international institutions.11

8

9

10

11

November 1950, 213 UNTS 221, art. 10; American Convention on Human Rights: ‘Pact of San Jose´, Costa Rica’, 21 November 1969, 1144 UNTS 123, art. 13; African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 UNTS 217, art. 9. The Inter-American Court of Human Rights has interpreted art. 13 of the American Convention on Human Rights as conferring a general right of access to government documents, but the European Court of Human Rights has to date given a more restricted interpretation of art. 10 of the European Convention on Human Rights. See Jonathan Klaaren, ‘The Human Right to Information and Transparency’, chapter 9 in this volume. Note also the range of treaties dealing with transparency requirements in sectors like trade, investment and the environment, and for particular ends, such as fighting corruption. Model freedom of information laws have been prepared for the Commonwealth (2002), the Organization of American States (OAS) (2010), and the African Union (2013). See also the Johannesburg Principles on National Security, Freedom of Expression and Access to Information (London: Article 19, 1996) (prepared by experts and activists, endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression). The Open Government Partnership, involving both governments and NGOs, invites countries to develop Action Plans containing specific commitments. For advocacy of this use of freedom of information laws, see e.g. Catherine Musuva (ed.), Behind Closed Doors: Secrecy in International Financial Institutions (Cape Town: Institute for Democracy in South Africa and the Global Transparency Initiative, 2006). For example, although the Kadi cases concerned rights of the defence, in particular the right to be heard, one of the material obstacles to realization of these rights was nondisclosure, under the process established by the Security Council, of the evidence against the individuals and entities subject to sanctions. For example, the US Congress has sometimes sought to make appropriations for UN funding conditional on administrative reform within the UN system, including on issues related to budget transparency. For a similar phenomenon in relation to the World Bank, see David Gartner, ‘The World Bank, the International Monetary Fund, and

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Significant international law provisions requiring States to promote transparency within transnational processes include article 3(7) of the Aarhus Convention.12 This imposes on (largely European) States parties an obligation to ‘promote the application of’ Aarhus principles, including public access to environmental information, in ‘international environmental decision-making processes and within the framework of international organizations in matters relating to the environment’. Guidelines on article 3(7), while taking an expansive approach to the ambit of article 3(7) in some respects, define in detail neither the scope of the obligation to ‘promote’, nor the level of abstraction at which the ‘principles’ are understood.13 There have not yet been any unilateral actions by States demanding greater transparency pursuant to article 3(7), but some NGOs have taken the Convention principles as a benchmark for advocacy in other institutions, even unrelated to the environment.14

2.2

Obligations of Global Governance Institutions

Arguments that the major global governance institutions may be directly bound by international human rights law to vindicate the right to information have not had much purchase to date: the multilateral development banks have tended to resist any claims that they are bound directly by international human rights law, and the UN system, while in the process of ‘mainstreaming’ human rights, has focused mainly on

12

13

14

Institutional Transparency’ (paper presented at the ASIL International Economic Law Interest Group Biennial Meeting, 29 November–1 December 2012). Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, 25 June 1998, 2161 UNTS 447 (Aarhus Convention). UN, Economic Commission for Europe, Report of the Second Meeting of the Parties, ECE/MP.PP/2005/2/Add.5, 20 June 2005, annex: Almaty Guidelines on Promoting the Application of the Principles of the Aarhus Convention in International Forums. On the Aarhus Convention and Almaty Guidelines, see Jutta Brunne´e and Ellen Hey, ‘Transparency and International Environmental Institutions’, chapter 2 in this volume, and Jonas Ebbesson, ‘Global or European Only? International Law on Transparency in Environmental Matters for Members of the Public’, chapter 3 in this volume. See e.g. World Bank, Operations Policy and Country Services, ‘Toward Greater Transparency: Rethinking the World Bank’s Disclosure Policy: Approach Paper’, 29 January 2009, available at: http://siteresources.worldbank.org/INFODISCLOSURE/ Resources/5033530-1236640024078/English_full.pdf, annex D: ‘Transparency Scorecard: IFI Transparency and the Aarhus Convention’.

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acute threats to life and well-being in peacekeeping operations and development work.15 Advocacy groups have posited a right to information applicable as against global governance institutions. The Global Transparency Initiative’s Transparency Charter for International Financial Institutions, which sets out nine broad principles (including a right to information), and a detailed commentary on measures to realize these principles, has played an important role in debates over transparency in the multilateral development banks.16 The 2008 Atlanta Declaration and Program of Action for the Advancement of the Right of Access to Information, issued by a group of activists, experts and scholars, asserts that a right to access information ‘applies to all inter-governmental organizations, including the United Nations, international financial institutions, regional development banks, and bilateral and multilateral bodies’, as well as to non-State actors in certain circumstances.17 However, these instruments do not themselves purport to be legally binding. Despite the lack of unambiguously applicable legal obligations regarding disclosure of information by global governance institutions, these institutions are increasingly adopting formal policies on transparency. Such measures often overlap with other initiatives to increase engagement in the institutions’ work, including opportunities for external 15

16

17

Even if there are unambiguous obligations on international organizations to realize human rights, complex questions remain about the responsibility of those organizations for violations, forums for redress, and immunity. Difficulties arising where States work together with, or under the auspices of, organizations, are exemplified by the fact that the United Nations Assistance Mission to Afghanistan is not able to obtain information on civilian casualties inflicted by the International Security Assistance Force in Afghanistan (ISAF) during night raids. ISAF, which has a peace enforcement mandate under Chapter VII of the UN Charter and is deployed under the authority of the UN Security Council, deems this information to be ‘classified’: UN Assistance Mission in Afghanistan (UNAMA), ‘Afghanistan: Annual Report 2011 – Protection of Civilians in Armed Conflict’, February 2012, available at: www.unhcr.org, i-ii and 27. See Global Transparency Initiative, ‘Transparency Charter for International Financial Institutions: Claiming our Right to Know’, available at: www.ifitransparency.org. The Global Transparency Initiative is a coalition of NGOs working on transparency and access to information. Though noted by NGOs as a resource and mentioned in the preamble to the OAS model law, the Declaration does not seem to have played a significant role in advocating changes in specific institutions. ‘Atlanta Declaration and Plan of Action for the Advancement of the Right of Access to Information’, available at: www.cartercenter. org; see also ‘London Declaration for Transparency, the Free Flow of Information and Development’, 25 August 2010, available at: www.article19.org.

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parties to participate in the institutions’ meetings or ongoing programmes, to be consulted or express a view on draft documents or proposed projects; routine and proactive release of certain classes of information, increasingly now including large-scale quantitative data;18 and greater resources for media, document translation and public outreach. Table 19.1 summarizes the incidence of publicly available formal ‘transparency’ policies in a range of global governance institutions, as determined by whether or not any such policy can be located in a search of the institution’s public website.19 ‘Transparency policy’ is here understood as a general policy stipulating the basis on which information held by the organization will be made available or not, as distinct from a policy applying to only particular narrow classes of document.20 The focus is on substance, rather than on the precise form and terminology of the document(s) in question.21 18

19

20

21

See e.g. World Bank Press Release, ‘World Bank Frees Up Development Data’, 20 April 2010, available at: http://web.worldbank.org; and pressure from the US and the UK for the Organization for Economic Co-operation and Development (OECD) to ‘make all of its core data freely available online’: Foreign and Commonwealth Office, ‘US and UK Urge OECD to Make Data Freely Available Online’, 11 October 2011, available at: http:// usoecd.usmission.gov. The release of large-scale data has not, however, been understood as an implementation of existing transparency policies. For an earlier survey of a larger number of (intergovernmental) institutions, see Alexandru Grigorescu, ‘Transparency of Intergovernmental Organizations: The Roles of Member States, International Bureaucracies and Nongovernmental Organizations’, International Studies Quarterly 51 (2007), 625–648, 628 (scoring institutions as 0 for no transparency policy, 2 for a ‘comprehensive’ policy satisfying certain criteria specified, and 1 for some policy falling short of satisfying those criteria). Thus, for example, ‘evaluation’ policies requiring certain evaluation reports to be published are not classified as ‘transparency policies’, because the stipulation refers to only a particular (albeit important) category of information. For example, the UN Secretariat, the Council of Europe (CoE) and the WTO policies look more akin to directives on information classification for record management purposes than policies dealing with public information as such. However, in the case of the WTO, all ‘unrestricted’ documents are automatically made available on the WTO website once translated, whereas the UN Secretariat’s bulletin deals only with ‘unclassified’ documents as a residual category, and makes no provision for unclassified documents to be made public automatically. The CoE policy provides that documents not subject to classification are ‘public’, without actually requiring their publication. The CoE and the WTO policies are here counted as ‘transparency policies’, and the UN Secretariat’s is not. See UN, Secretary-General’s Bulletin, Information Sensitivity, Classification and Handling, ST/SGB/2007/6, 12 February 2007; EU, Council of Europe, Resolution 2001/6 on Access to Council of Europe Documents, 12 June 2001; WTO, Procedure for the Circulation and Derestriction of WTO Documents: Decision of 14 May 2002, WT/L/452, 16 May 2002.

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Table 19.1 Existence of Publicly Available Transparency Policies in Selected Global Governance Institutions (as of April 2013) Class of Governance Institution

Transparency Policy (as defined above)

All UN specialized agencies

IFAD ILO IMF World Bank Group (though varies among institutions in the Group)

All UN Programmes and Funds

UNDP (also covers UNIFEM, UNCDF and UNV) UNICEF

All UN Related Organizations

WTO

Selected other UN entities Key multilateral development banks (other than WB Group) Selected generalist regional organizations

UNOPS

Selected hybrid organizations

No Transparency Policy (as defined above) UN Secretariat FAO ICAO IMO ITU UNESCO UNIDO

UNWTO [World Tourism Organization] UPU WHO WIPO WMO UNHCR ITC UNODC UNCTAD UNRWA UNEP UNWFP UNFPA UN Women UN-HABITAT International Preparatory Atomic Commission for Energy the Comprehensive Agency Nuclear-Test-Ban Organization for Treaty the Organization Prohibition of Chemical Weapons

ADB AfDB EBRD IDB ASEAN CoE (European Parliament, African Union Arab League Council, Commission subject to Regulation 1049/ 2001) OAS Global Fund ICANN

Caricom Commonwealth

transparency in global governance institutions 511

As Table 19.1 indicates, transparency policies, as here defined, are found in some of the UN specialized agencies, programmes and funds, although by no means all. They are most widespread in the international financial institutions and particularly the multilateral development banks. They are also found in some of the better-resourced and politically or socially salient hybrid organizations (and, although not shown in Table 19.1, are even being adopted by some NGOs).22 Of course, Table 19.1 concentrates disproportionately on the institutions which have been most proactive on transparency; many inter-State bodies do not have transparency policies of any kind, and some actually require States to enact legislation that restricts access to information.23 Even among those institutions identified in Table 19.1 as having ‘transparency policies’, there are significant variations. Table 19.2 tracks the presence or absence of various formal characteristics of the policies of these institutions: *

comprehensive application (CA): purports to cover the whole range of documents held by the institution (often a matter of judgement based on the phrasing of the policy);24

22

For example, Oxfam Great Britain has an Open Information Policy and guidelines listing the most frequent grounds for refusal to disclose (rather than specifically worded exceptions), and a review mechanism of complaint to the Company Secretary. Oxfam GB, ‘Open Information Policy’, 2011, available at: www.oxfam.org.uk. See e.g. Alasdair Roberts, ‘NATO, Secrecy, and the Right to Information’, East European Constitutional Review 11(4)/12(1) (2002/2003), 86–94; Alexandru Grigorescu, ‘European Institutions and Unsuccessful Norm Transmission’, International Politics 39 (2002), 467–489, 471–473. All the institutions in Table 19.2 have a ‘transparency policy’ as loosely defined for Table 19.1, namely a policy of some generality rather than one specific to particular classes of documents. However, even among the general policies, some are limited to documents of a particular status (e.g., for the WTO, ‘official documents’, and for the CoE, documents of the Committee of Ministers rather than the Secretariat) or satisfying some substantive criterion (e.g., for United Nations Children’s Fund (UNICEF), information ‘concerning a matter relating to the policies, activities and decisions of UNICEF’ and in the possession of UNICEF) (see UN, UNICEF, ‘Information Disclosure Policy’, updated 10 May 2011, available at: www.unicef.org, para. 5). Other cases are less clear: e.g. the International Fund for Agricultural Development’s (IFAD) policy applies to ‘documents produced by IFAD’ (UN, IFAD, ‘IFAD Policy on the Disclosure of Documents (2010)’, EB 2010/100/R.3/Rev.1, 17 September 2010, available at: www.ifad.org, para. 11), but the exceptions suggest that it extends to documents held by IFAD but generated by others). All three of these institutions (WTO, UNICEF, IFAD) are coded as CA. Institutions not coded as CA generally have some vague substantive criterion for which documents are covered, which appears to limit the scope of the policy, though a great deal clearly depends on interpretation.

23

24

512 *

*

*

*

*

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open mechanisms for request (OMR): lays out a means by which those outside the institution can request access to information not already released, without having to give any particular reason for their request; presumption of disclosure (PD): provides that the institution shall disclose requested information of the kind subject to the policy unless the information falls within specific exceptions, or unless a State or the board or other entity does not consent (as opposed to setting out categories of information which shall be disclosed, with the remainder to be confidential); discretion to withhold (DW): allows the institution to withhold information otherwise subject to disclosure in certain cases (this may be of little significance where exceptions already have considerable discretion built in); discretion to release (DR): allows the institution to release information that would not otherwise be subject to disclosure in certain cases; institutionalized review of decisions (IR): provides for one or more tiers of review of at least some types of decision not to disclose requested information (although some decisions, such as those by the institution’s board, may not be amenable to review).

Most policies summarized in Table 19.2 share certain features: a means of requesting information not already provided, and a presumption of disclosure coupled with limited exceptions (albeit of variable effect depending on the application of the policy, the phrasing of the exceptions, some of which are very broad,25 and the discretion to withhold, if applicable). The multilateral development banks, the United Nations Office for Project Services (UNOPS), the Organization of American States (OAS) and the Internet Corporation for Assigned Names and Numbers (ICANN) have the most intricate policies, providing not only for certain exceptions but for both positive and negative override of the terms of the policy. All the institutions which allow requests for documents, except the International Labour Organization, provide for at least one tier of 25

For example, the OAS policy lists specific exceptions for matters such as ‘Deliberative information’ and then a further exception covering ‘Any other information that, in the opinion of the Information Officer or, where applicable, the [Access to Information] Committee, is as sensitive as the information protected by the exceptions described in the foregoing paragraphs.’ See OAS, General Secretariat, Executive Order No. 12-02, 3 May 2012, Appendix A: Access to Information Policy, para. IV(1)(m).

Table 19.2 Formal Characteristics of Selected Transparency Policies (as of April 2013) Formal Features of Transparency Policy Institution and Date of Effectiveness Class of Institution

of Current Policy

CA

OMR

PD

DW

DR

IR (# tiers)

IMF (17 March 2010)

–

–

X

World Bank (IBRD & IDA) (1 July 2010)

X

X

X

X

X

X (2)

MIGA (1 July 2007)

–

X

X

–

X (narrow)

X (1)

IFC (1 January 2012) ILO (11 April 2008)

– –

X X

X X

– –

X (narrow) –

X (2) –

IFAD (1 January 2012)

X

X

X

–

–

X (1)

UNDP (also covers UNIFEM,

–

X

X

–

–

X (2)

UNICEF (16 September 2010)

X

X

X

X

–

X (1)

UNOPS (26 January 2012)

X

X

X

X

X

X (2)

UN Related Organizations

WTO (15 May 2002)

X (official docs)

–

–

Multilateral development banks

X (2)

UN Specialized Agencies

UN Programmes and Funds

UNCDF and UNV) (January 2008)

ADB (2 April 2012)

X

X

X

X

X

(other than World Bank

AfDB (3 February 2013)

X

X

X

X

X

X (2)

Group)

EBRD (1 November 2011)

–

X

X

–

X (narrow)

X (1)

IDB (1 January 2011)

X

X

X

X

X

X (2)

CoE (12 June 2001)

X (Council of

–

–

OAS (3 May 2012)

X (docs in possession of General Secretariat)

X

X

X

X

X (2)

ICANN

X

X

X

X

X

X (2)

Global Fund (May 2007)

X

–

X

–

–

–

Generalist regional organizations

Ministers docs)

Hybrid public–private organizations

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internal review of a refusal to disclose requested documents. In some cases there is a further avenue for review. In the World Bank, for example, a requester may appeal to the Access to Information Committee (an administrative body reporting to the Bank management), if the requester is able to establish a prima facie case that the Bank has violated its policy by improperly or unreasonably restricting access to information that should be disclosed, or if the requester can make a public interest case to override one of the exceptions subject to override. Appeals from a decision by the Committee that the Bank did not violate its policy may be taken before an external Appeals Board (Committee refusals of public access override are final).26 The Committee and Board make decisions in writing and, if upholding a denial of access, must give reasons. In the United Nations Development Programme (UNDP), for example, there is an internal review by the Legal Support Office, and a further possibility of review by the Information Disclosure Oversight Panel (although the Panel may only make recommendations as to whether the documents in issue should be released).27 Global governance institutions vary markedly in their approaches to transparency. Among intergovernmental organizations, some evidence suggests that the general level of democracy in members is significantly correlated with institutional openness, as are institutional factors such as the number and complexity of issues dealt with by the organization; size of organization budget; and recent experience of scandal.28 It seems plausible that the history and culture of an institution also play some role. Some States are particularly influential in promoting transparency in institutions of which they are members,29 and NGOs have 26

27

28

29

Comprising three experts on access to information nominated by the President and endorsed by the Board. UN, UNDP, ‘Information Disclosure Policy’, available at: www.undp.org, paras. 15–17. Multi-issue institutions are less likely to be transparent than single-issue ones, and institutions with larger budgets are more likely to be assessed as transparent than those with smaller budgets: Grigorescu, ‘Transparency of Intergovernmental Organizations’ 2007 (n 19); see also Jonas Tallberg, ‘Transnational Access to International Institutions: Three Approaches’, in Christer Jönsson/Jonas Tallberg (eds.), Transnational Actors in Global Governance (Basingstoke: Palgrave MacMillan, 2010), 45–66. E.g. the US (and its financial heft) has played a major role in pushing for transparency reform in the World Bank and recently also in the Inter-American Development Bank (IDB): Gartner, ‘The World Bank, the International Monetary Fund, and Institutional

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campaigned energetically, both directly and through the governments of major member States, for transparency reforms in particular classes of institution, drawing on the language of international human rights and on legal obligations such as article 3(7) of the Aarhus Convention.30 Other relevant factors include the attitudes of the institution’s leaders and staff to transparency reforms, and relevant developments in peer institutions. A review of the background documents to the most recent transparency policies suggests that these reforms have strong iterative and imitative dimensions, particularly among classes of cognate institutions.

3. A Global Administrative Law of Transparency? As is evident from the foregoing, there is no one ‘law’ of transparency in force across global governance institutions. The transparency of these institutions may be regulated indirectly, through the public law of individual States as members or as agents for the implementation of global policies in their own jurisdictions, but this will remain a patchwork system. Rather, to the extent that norms of transparency directly applicable to global governance institutions can be identified, they are emerging primarily through practice, in an incremental and uneven way. Although Table 19.2 represents policies as currently in force, the trend of revisions over recent years has been towards a stated presumption of disclosure, and towards a second tier of ‘independent’ review or ‘appeal’ from decisions not to disclose. The institutions most active on transparency appear to be developing and refining their policies with an eye to what peer institutions are doing, and frequently borrowing from approaches to freedom of information in domestic systems. The mechanisms for requesting documents, the stated presumptions of disclosure, and the increasingly formalized review processes found in the policies examined here mirror, albeit in a simplified form, the core of most State freedom of information laws. The exceptions to disclosure in 30

Transparency’ 2012 (n 11); freedomInfo.org, ‘IDB Approves New Disclosure Policy’, 13 May 2010, available at: www.freedominfo.org. While Alexandru Grigorescu finds the number of NGOs engaged with the work of an intergovernmental organization not to be a significant factor in determining the institution’s openness (Grigorescu, ‘Transparency of Intergovernmental Organizations’ 2007 (n 19), 641), it is perhaps not the number of NGOs engaged in the work programme but the focus of NGOs (on freedom of information, rights or democracy, for example, rather than more technical areas), and their capacity to articulate sophisticated, actionable demands, that would matter.

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the policies of global governance institutions are also often broadly consistent with State freedom of information regimes. There remain, however, important differences between these institutional policies and domestic laws. Few of the policies refer to a ‘right’ to information. The ‘balancing of harms’ approach taken as standard in State freedom of information laws tends not to be fully adopted,31 and institutional policies often make concessions to States’ preference for confidentiality or contain prerogatives not to disclose documents that would otherwise be subject to disclosure. Throughout, the policies are framed in a less precise and systematic manner than most statutes or codes. Finally, while first-tier review mechanisms resemble administrative review mechanisms within public authorities, and the second-tier review, where it exists, is often clothed in the language of judicial and quasijudicial process,32 the entities involved are not, in any of the cases examined here, actual courts or tribunals. The global governance institutions examined here do not appear to have adopted transparency policies because they believed they were legally bound to do so. The actual motivations of actors are not always evident from the formal records, and the formal records disclose only a generalized sense of a connection between transparency and various ideals (including participatory decision-making) and desirable ends 31

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E.g. the World Bank policy asserts that the Bank ‘does not provide access to information whose disclosure could cause harm to specific parties or interests’ (World Bank, ‘World Bank Access to Information Policy’, 1 July 2010, available at: http://documents.worldbank.org, para. 7) and then lists categories of documents that are assumed to fall within this class. A ‘balance of harm’ approach is brought in explicitly in connection with exercise of the prerogative to disclose or restrict access other than in accordance with the exceptions. Many of the UN agencies’ or funds’ policies do not refer to harm but to, for example, ‘legal, operational and practical considerations that are necessary to preserve the organization’s interests’, see UNDP, ‘Information Disclosure Policy’ (n 27), para. 11. For example, the World Bank Access to Information Appeals Board, in one of its first decisions, took a ‘purposive reading’ of the Access to Information Policy and Operating Procedures, in particular the ‘wider jurisdiction’ available to the first-tier Access to Information Committee, and concluded that ‘it would not be unreasonable to infer an authority to remit a case back to the [Committee]’, at least to address procedural failings or omissions. Given the Board’s view that the Committee had, in that case, not adequately considered a complaint of non-disclosure of two particular reports, the Board invited the Committee to consider the reports in question, and noted that if the Committee found this course acceptable, it would be helpful to insert an express authority to remit in like cases in the Operating Procedures: AI Appeals Board, Note of Adjournment, Case No. AI1362 (13 December 2012), available at: http://go.worldbank.org/1KLGX508S0.

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(such as perceived legitimacy, and organizational efficiency).33 This fluidity in justifications reflects the state of the discourse on transparency more broadly, in which transparency is sometimes treated as having intrinsic importance (as a human right to information and political participation; or part of an ideal of democratic governance), and sometimes cast in more instrumental terms.34 Internal policies, as the products of compromise, may not instantiate a fully worked-out normative position. However, some primarily legal notions have clearly played an important role in shaping institutional approaches to transparency. Aside from the policies being influenced in their design by attempts to realize greater transparency in and through domestic legal orders, the adoption of a transparency policy has in some cases been connected to a sense that the relevant global governance institution is a ‘public’ institution and thus, by analogy, under the kinds of obligations regarding transparency imposed by domestic public law. This has been evident in the World Bank. While the Bank has sometimes refused any strong notion of itself as being under a duty of transparency because of its status as a ‘public’ institution,35 one of the reasons that the Bank apparently found arguments and pressure for transparency reform compelling was the dissonance between what the Bank itself had been urging borrower governments to do, and its own practice.36 In the Washington consultation over the draft policy, a Bank representative is recorded as saying: ‘[a]s a public body owned by its member governments, the Bank 33

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See e.g. World Bank, ‘Access to Information Policy’ 2010 (n 31), para. 1: ‘[t]ransparency is essential to building and maintaining public dialogue and increasing public awareness about the Bank’s development role and mission. It is also critical for enhancing good governance, accountability, and development effectiveness. Openness promotes engagement with stakeholders, which, in turn, improves the design and implementation of projects and policies, and strengthens development outcomes. It facilitates public oversight of Bank-supported operations during their preparation and implementation, which not only assists in exposing potential wrongdoing and corruption, but also enhances the possibility that problems will be identified and addressed early on’. And even within, say, the view of transparency and access to information as a human right, there may be a number of quite different ideas circulating: see e.g. Ackerman/ Ballesteros, ‘Global Explosion of Freedom of Information Laws’ 2006 (n 6), 89–91. World Bank, ‘World Bank Disclosure Policy Review – Summary of Feedback from Public Consultations’, available at: http://go.worldbank.org/PA43IZKD60, 2. ‘Both within and outside the Bank, many feel that the Bank’s approach to disclosure does not match its advice to its Clients’, World Bank, Operations Policy and Country Services, ‘Toward Greater Transparency through Access to Information: The World Bank’s Disclosure Policy’, 10 December 2009, available at: http://siteresources.worldbank.org/EXTINFODISCLOSURE/Resources/R2009-0259-2.pdf, i, see also 2.

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must have a compelling reason not to release information. The Bank’s revised approach was inspired in part by recent freedom of information legislation of some member countries, including India and Mexico’.37 These comments reflect a concept – even if not fully formed – of the Bank as a ‘public’ institution, whether because it is ‘owned by (. . .) member governments’ and is assimilated to public institutions through that relationship, or because it acts with and through governments, or because it sees itself as in some ways acting in a governmental capacity in relation to particular populations. This sense is certainly buttressed by NGO responses to the Bank and other multilateral development banks, which routinely compare their transparency measures to those of States. The spread of formal transparency policies is part of a broader pattern by which global governance is increasingly being made subject to procedural norms that, at least in loose and functional terms, reflect basic principles of administrative law as it exists within States.38 Even in situations in which internal policies are arguably not mandated by any specific legal rule, they may be understood as having some legal significance, whether in the character of ‘general principles’ or as part of a revived ius gentium that transcends the statism of current accounts of international law. Any claim about the status of these internal institutional practices as law or not-law obviously depends on definitions of ‘law’ that have not been argued for here,39 but internal policies and practices likely have at least the potential to give rise to a tissue of legal, or legally significant, norms, at some future point. In particular, the functional demands of implementation of the policy and the highly legalist rhetoric and structure of some of the review processes may, over time, force a better articulation of the relationship between the detail of particular policies and broader ideas of rights, publicness and legitimacy. The language of many of the policies may 37

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World Bank, ‘Toward Greater Transparency, Rethinking the World Bank’s Disclosure Policy: Summary of the Consultation Meeting [at WB-IMF Spring Meetings (Washington DC)]’, 25 April 2009, available at: http://go.worldbank.org/PA43IZKD60, 3; on influence of India’s right to information laws on World Bank process, see also statement by Peter Harold, World Bank Director of Operations, recorded in World Bank, ‘Delhi Consultation: Toward Greater Transparency: Rethinking the World Bank’s Disclosure Policy’, 5 June 2009, available at: http://go.worldbank.org/PA43IZKD60). See e.g. Kingsbury/Krisch/Stewart, ‘Emergence of Global Administrative Law’ 2005 (n 4); Sabino Cassese, ‘Administrative Law without the State? The Challenge of Global Regulation’, NYU Journal of International Law and Politics 37 (2005), 663–694. See Benedict Kingsbury, ‘The Concept of “Law” in Global Administrative Law’, European Journal of International Law 20 (2009), 23–57.

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admittedly not withstand the close interpretation typically given to legal instruments, and the policies generally do not recognize a right to information, so staff and review bodies seem unlikely in the near term to develop a strongly individualist or dignitarian approach. However, as they are required to pronounce judgement on issues such as whether a case warrants ‘public interest’ override of particular exceptions, they will likely seek both consistency across decisions, and some way to give substance to open-ended notions like ‘public interest’. In these circumstances human rights law or general principles of public law may be at least a point of reference. And while internal understandings about interpretation of exceptions and grounds for ‘public interest override’ are, in the first instance, binding on a single institution, they might subsequently spread to other entities with which the institution cooperates or interacts, whether through emulation, explicit agreement on a consistent approach, or pressure from different actors to follow other institutions’ example. It is thus possible to see, in the complex intersections of existing law and policies, some pathways through which norms of transparency may develop further both within and between institutions, and grow more embedded in existing bodies of law.

4. Effects of Greater Transparency of Global Governance Institutions The picture drawn thus far probably magnifies the current reach of a norm of transparency in global governance, insofar as it focuses primarily on larger and better-resourced intergovernmental institutions with relatively sophisticated policies. Much of global governance occurs in and through very different forums and institutions, including private and corporate entities, which, while usually subject to some transparency requirements, are much less open. Even within the institutions discussed here, highly salient information may simply escape the reach of transparency obligations, because of the limited scope of the policies, or the breadth of exceptions to disclosure (in particular, ‘deliberative’ exceptions protecting the confidentiality of draft documents, and negotiations and deliberations between government delegates, and among the institution’s staff).40 Perhaps most importantly, the extent to which 40

These exceptions are among the most highly contested aspects of transparency policies. In the EU, see European Court of Justice, Council of the European Union v. Access Info Europe, case C-280/11 P (this litigation is discussed further below, in n 50 and

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transparency policies provide access to information depends on the institution’s approach to the gathering and production of information and the existence of requirements that force the institution to collect particular information at a given time (such as to conduct programme evaluations, environmental assessments or consultations). As many laws and policies apply only to information already in existence, and provide for disclosure only in its existing form, access to this information only allows those outside the institution to see the world as the institution sees it.41 To bring new information into being, outsiders must first compel the institution to look at the world differently, and then disclose information generated from this new perspective. Despite the many ways in which formal policies may fail to ensure the kinds of public knowledge of governance institutions and their work for which many advocates of transparency hope, it is reasonable to assume that institutional measures to increase transparency, such as the policies surveyed in section 2, will have at least some effect. Many of the claims and justifications advanced for transparency portray it as a means of recalibrating power relations between actors – constraining some institutions (governments, global governance institutions) and empowering actors outside these institutions. However, this may be too simple a picture; transparency measures do not so much check power as reallocate and even produce it. If transparency measures empower some actors outside institutions, they may do so unevenly, creating new disparities;

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accompanying text). For the World Bank, of thirty-four requests for documents denied in whole or in part in financial year 2012, sixteen were denied under the ‘deliberative information’ exception, more than on any other ground, and this large share of denials attributable to the exception is consistent with experience in previous years. Challenges to documents withheld under the deliberative exception are also strongly represented among matters taken to the Access to Information Committee. The Access to Information Committee has emphasized the breadth of this exception (‘“Deliberative Information” (. . .) is applied broadly to include any internal communications and communications with external parties’), and has instructed points of contact for access inquiries not to refer to it requests for the exercise of the prerogative to disclose information restricted under the deliberative exception where the restricted information is less than five years old. See World Bank, World Bank Access to Information, Annual Report, FY 2012: Moving Forward Transparency and Accountability (Washington DC: The World Bank, 2013), 14; World Bank, World Bank Access to Information, Annual Report, FY 2011: Moving Forward Transparency and Accountability (Washington DC: The World Bank, 2012), 14, 28 and 36–37. For a sense of the (disputed) breadth of the deliberative exception see freedominfo.org, ‘World Bank Reverses Decision; Releases Draft Egyptian FOI Law’, 8 June 2012, available at: www.freedominfo.org. On the particular vision of international institutions, see Andre´ Broome/Leonard Seabrooke, ‘Seeing Like an International Organisation’, New Political Economy 17 (2012), 1–16.

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and it is not clear that transparency measures always do empower those outside an institution, relative to the institution itself. Purported constraints on power may be generative of new forms of power and legitimacy, and help construct new relations of authority. These effects are likely to be complex and highly contextual, depending (among other things) on the kinds of information produced in an institution and how the exceptions to disclosure are applied, the extent to which transparency measures are actually complied with, and the number and characteristics of individuals and organizations that actively seek information and put it to use. A 2007 survey of seventy-two intergovernmental organizations found a wide variation in scores for ‘transparency to public’ and ‘transparency to NGOs’ even among organizations with broadly similar transparency measures.42 Information provided by NGOs in relation to specific institutions suggests that there are ongoing problems in implementing existing policies.43 Laws providing access are quite heavily used in the EU, and policies are increasingly used in the multilateral development banks,44 but apparently less so in the UN agencies.45 Moreover, the primary audience for 42 43

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Grigorescu, ‘Transparency of Intergovernmental Organizations’ 2007 (n 19). See e.g. NGO Forum on ADB, ‘Failure to Deliver: The State of People’s Access to Information under the ADB PCP’, 15 April 2010, available at: www.forum-adb.org; Lindlyn Tamufor/Gary Pienaar, African Development Bank Information Disclosure Policy Implementation Research Project (Cape Town: Institute for Democracy in South Africa and the Global Transparency Initiative, 2011); Musuva (ed.), Behind Closed Doors 2006 (n 9), 4–6; Herbert Burkert/Urs Gasser, ‘Accountability and Transparency at ICANN: An Independent Review’, 2010, available at: http://cyber.law.harvard.edu (some of the policies in question have since been updated but this in itself does not necessarily indicate improved implementation). For example, in financial year 2012 767 public access requests were made electronically to the central access to information system (excluding those made to communications staff in country offices). Interestingly, rough data on reported affiliations of requesters in financial year 2012 indicates that 53.5% of requests were from those self-identified as in academia/education, 15.9% from those in business/private enterprise, 7.6% from NGOs/ CSOs, and even smaller shares from governments and development agencies. See World Bank, Access to Information, Annual Report, FY 2012, 2013 (n 40), 12, 20. As of April 2013 the Access to Information Committee has decided nineteen appeals, and the Board has given two decisions. Lists of decisions are available at: http://go.worldbank.org/ IBP7MUU3P0. For example, the UNDP Oversight Panel did not receive any appeals in the first seven years of its existence and, when presented with an appeal in 2004, failed to give effect to the text of the then-existing policy, giving only a summary of the events regarding which information was sought, instead of the documents themselves: Alasdair Roberts, ‘UNDP Panel Makes First Decision, and Guts Disclosure Policy’, 25 October 2006, available at: www.freedominfo.org.

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information may not be the audience that was expected or desired. Although institutions often have a vision of the actors who are likely to take up their information, once institutions have moved to a system in which any group or individual can request information without justifying the request, they have little opportunity to control the audience for this information (other than charging fees to dissuade and recompense burdensome requests). Although contextual factors make a considerable difference, some more general propositions may nevertheless be advanced. This section proposes some (untested) hypotheses regarding the effects of transparency policies and other measures to disseminate knowledge of a global governance institution’s workings (referred to collectively as ‘transparency measures’). Transparency is bound up with circulation of information and with the political and power dimensions of knowledge. The first two hypotheses concern the effects of transparency on the generation of information, and on the formation and empowerment of intermediary institutions to deal with the information. The remaining ten hypotheses concerning effects of transparency are, for convenience, grouped loosely by categories of actors affected (States, entities within States, global governance institutions, non-State actors). This grouping should not mask the essential point that transparency also affects relations between and within any of these sets of actors. Interinstitutional dynamics greatly influence governance in the global administrative space. One would expect there to be relationships between transparency measures, information flows and inter-institutional cooperation: for example, as doctrine develops on the allocation of legal responsibility for harms inflicted in cases of cooperation between international organizations, and between international organizations and States, it seems likely that this potential liability may exert pressure for – or conceivably against – greater information-sharing between institutions, if not with the public at large. (H1) Transparency measures, and in particular the certainty or possibility that information will be disclosed to the public, may affect choices about what information to produce, and how it is presented. A dynamic relationship exists between policies of transparency and decisions by an institution about what information to collect and how to process and present it. Transparency may expose what information an institution does not have, in some cases prompting it to collect more information or process it differently. Conversely, an institution may

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deliberately not collect or process some information, or the institution or its members may avoid recording some information, because of requirements of transparency. Two examples illustrate these potential effects on the collection and recording of information. The Global Fund to Fight AIDS, Tuberculosis and Malaria had a policy requiring that reports of audits of both Secretariat and staff processes and of the grant portfolio be published on the website of the Office of the Inspector-General (OIG).46 In 2010 the OIG published audit reports detailing possible fraud and misuse of funds in various African countries. This information was picked up in the press some months later, and presented in a somewhat sensationalizing way, to suggest that corruption and fraud were widespread in fund programmes. Several donor countries expressed reservations about future funding commitments. A High-Level Independent Review Panel appointed to examine fiduciary controls and oversight mechanisms recommended that OIG reports concerning the Secretariat should not be released to the public, noting that many comparable grant-making institutions did not publish such reports. The Panel generally endorsed ongoing publication of audits of the grant portfolio, but recommended ‘creat[ing] separate versions of such reports for the Board and Secretariat, law-enforcement officials and the general public’ and making ‘appropriate redactions in public disclosures of information that could complicate efforts to recover assets or monies lost to malfeasance, or could prejudice the prosecution of those involved’.47 Other recommendations sought to ensure a more informal, confidential channel of information between the OIG and the Board prior to release of audit reports, and a more precisely differentiated description of ‘losses’.48 The incentives to avoid information being recorded in particular ways were articulated by the (intergovernmental) European Council in a notable case before the European Court of Justice. The Council relied on the effect of transparency on the willingness of members to put positions in writing in order to defend a decision not to disclose information.49 The information sought was the names of delegations taking 46

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Global Fund, High Level Independent Review Panel, ‘Turning the Page from Emergency to Sustainability: The Final Report of the High-Level Independent Review Panel on Fiduciary Controls and Oversight Mechanisms of the Global Fund to Fight AIDS, Tuberculosis and Malaria’, 19 September 2011, available at: www.theglobalfund.org, 57–58. Ibid., 62. 48 Ibid., 63 and annex O. Pursuant to an exception for documents that relate to a matter in which a decision has not been taken, where disclosure of the document would seriously undermine the

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particular positions on (ironically) a redrafting of the regulation concerning access to Council documents. A document showing this information had actually been leaked prior to the case being heard, allowing the Council to assess the impact of the disclosure. The Council asserted: [T]he delegations have since [the disclosure] been particularly cautious in circulating their positions in writing, in particular those which would expose them to public criticism or controversy. The consideration of a legislative proposal is not feasible on the basis of merely oral exchanges between the delegations. (. . .) full disclosure of the requested document had a negative effect on the sincerity and exhaustiveness of the discussions within the Council Working Group.50

Of course, greater transparency will not, of itself, necessarily lead to changes in the nature of the information collected, recorded and processed. Certain information may be required under other laws, or in order for the institution to function or negotiations to proceed at all. Moreover, choices about whether to continue producing particular information for public access will be subject to normative arguments and calculations of political economy (including regard for reputational losses that would flow from an obvious retreat to secrecy). (H2) The impact of transparency measures depends on the existence of intermediaries (NGOs, academics, corporations, news media and other interested parties) willing and able to make use of the information provided. It is evident that simply making information available will not necessarily have any effects on engagement by others with the institution, or on broader debates. In just one example, Robert Bourgoing, the former Manager of Online Communications at the Global Fund, reported in 2013 his gradual realization that ‘something was (and still is) missing’ even at the Global Fund, an institution particularly committed to transparency: Apart from experts in donor governments and a handful of technical partners (. . .) very few local organisations or people take advantage of

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institution’s decision-making process: EU, Regulation (EC) No. 1049/2001, 2001 (n 5), art. 4(3). As summarized by the Court: European General Court, Access Info Europe v. Council of the European Union (n 40), paras. 45 and 50. The case has been appealed by the Council, with the support of the Czech Republic, Greece, France and Spain. See European Court of Justice, Council of the European Union v. Access Info Europe, case C-280/11 P, Opinion of AG Cruz Villalón, 16 may 2013 (proposing that the appeal be dismissed).

transparency in global governance institutions 525 Global Fund transparency to trigger open and well-informed discussions on aid effectiveness. (. . .) Global Fund transparency, as it is practised today, is more of a barrier to journalists and in-country activists than anything else: intimidating piles of reports (. . .) countless files and downloadable materials that reassure technocrats in donor capitals but that don’t say much about the reality of what happens to the funds when they hit the ground.

In order to overcome this impasse, Bourgoing calls for significant capacity-building to enable recipient communities to use information in the service of their own monitoring and activism.51 While in this case the greater involvement of recipient communities is clearly desirable, the proliferation of intermediaries in flows of information may, in many cases, give rise to new layers of institutionalization, initially established to interpret and make sense of information but ultimately themselves requiring scrutiny. This is almost inevitable given the relationship between information and power which ‘big data’ is intensifying.

4.1

Effects for States as International Actors

(H3) Transparency measures may alter existing inequalities between States in access to information held or collected by global governance institutions. When a global governance institution holds significant non-public information, inequality of access is likely. Some States may have, or be perceived to have, greater access to such information, for example because their role as major donors or contributors facilitates informal consultation, their nationals work in senior positions and may channel some information back to governments, or they have the intelligence capability to obtain the information covertly.52 Transparency measures 51

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Robert Bourgoing, ‘Africa: The Global Fund Should Take Transparency to Another Level’, 18 April 2013, available at: www.aidspan.org/gfo_article/global-fund-shouldtake-transparency-another-level. States are widely assumed to use intelligence capabilities to obtain non-public information held by international organizations. It is alleged, for example, that China sought (successfully) to hack into the International Monetary Fund’s computer systems, although China denies any involvement: Ian Talley/Siobhan Gorman, ‘Computers in China Used for IMF Hack: Source’, Wall Street Journal (22 July 2011). Another example is the 2009 directive to US diplomats, brought to light by WikiLeaks, asking diplomats to gather information on UN Secretariat staff and their views about an array of current issues: ‘National Human Intelligence Collection Directive: Reporting and Collection Needs: The United Nations’, 31 July 2009, available at: www.guardian.co.uk.

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are unlikely to effect any radical or complete equalization of access to information but they may provide some measure of access and thus narrow current inequalities between States. This could have implications for different States’ capacity to influence the direction of negotiations and activities within the institution (H5), and for States’ positions in other areas in which information held by the institution is relevant (encompassing anything from macroeconomic planning to crafting bids to host sporting events). (H4) Impacts of transparency measures on particular States depend on resources and capacity to make use of information. States with extensive resources and capacity may be well placed to make use of proactive releases of information and of mechanisms to request release of specific information. Smaller or developing countries with limited State capacity are more reliant on NGOs or other intermediaries to access information and make sense of it, and the impact of institutional transparency measures for such countries is likely to vary with the availability of intermediaries able to sift the information and provide analyses (H2), and with the extent to which the intermediaries’ interests coincide with their own. Where these effective intermediaries are not present, transparency measures may, in fact, magnify inequalities in access to information. (H5) Transparency measures may increase the influence of some States over the programmes of global governance institutions, relative to the influence of other States. Taking into account the fact that transparency measures may help build coalitions on particular issues (H9), affect inequalities in access to information (H3), and have different impacts depending on resources and availability of intermediaries (H4), they may strengthen the influence of some States over others, especially where States are sharply divided on particular issues, and/or where non-State actors play an important role. This appears to have been a factor, for example, in developing countries’ fears that greater access to information for, and participation by, NGOs in the work of the WTO would further an agenda on labour and environmental issues that, while largely unproblematic for Western governments and tending to serve the interests of many of their constituencies, was inimical to the economic interests of the developing world.53 53

See e.g. Jagdish N. Bhagwati, ‘Third World Intellectuals’ and NGOs’ Statement Against Linkage’, November 1999, available at: www2.bc.edu; Jagdish N. Bhagwati, ‘Afterword: The Question of Linkage’, American Journal of International Law 96 (2002), 126–134.

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4.2

Effects on the Power and Influence of Entities within States

(H6) Transparency measures may play a role in shifting relations of power within States. The greater availability of information about governmental activities both domestically and in international interactions seems likely to empower some actors within the State (such as NGOs and the legislature) relative to the executive. Where interactions with global governance institutions are highly centralized in particular agencies of the executive (such as interactions with the international financial institutions, often confined to a small nucleus within the treasury or ministry of finance),54 greater access to information may even empower other executive agencies with different policy priorities. Different actors within the State may also be able to forge transnational coalitions with peers in other countries, or with transnational NGOs (H9), and thus to consolidate their own influence on particular issues.

4.3

Effects for Global Governance Institutions

4.3.1 Relations with States (H7) Transparency measures may reduce cooperation of some States with an institution and/or decrease willingness to seriously address particular issues within that institution. Some of the changes in power distributions wrought by greater access to information, such as the possible heightening of some States’ agendas over others (H5), or the strengthening of the position of legislative or non-governmental actors vis-à-vis the executive (H6), may discourage governments with a preference for greater secrecy from interacting with the institution on particular issues. Several governments asserted, for example, that if the World Bank’s access to information policy were to allow disclosure of State-specific documents by the Bank without authorization by the States concerned, undesirable or even dangerous effects may ensue.55 It may be that resistance to transparency plays a role in the

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Ngaire Woods, The Globalizers: The IMF, the World Bank, and Their Borrowers (Ithaca: Cornell University Press, 2006), chs. 3–4. E.g. representatives of the governments of Brazil, Zambia, Egypt and Sri Lanka (see World Bank, ‘Summaries of Consultations’, available at: http://go.worldbank.org/ PA43IZKD60).

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increasing tendency of States to turn to alternative sources of finance rather than the multilateral development banks.56 (H8) Transparency measures can enable greater scrutiny and contestation of, or conversely support for, policies being pursued at the instigation of a global institution. Having regard to the possible generation of transnational coalitions (H9) and empowerment of different entities within the State (H6), transparency measures may enable coordinated resistance to global policies, or the cultivation of domestic support that creates pressure on State executives to follow them. Many global institutions in fact attempt to create pressures of the latter kind, for example through release of indicators which rank country performance and mobilize constituencies to press for the kinds of policies encoded by the indicator as desirable.57

4.3.2 Relations with Other Actors in the Policy Field (H9) Transparency measures may foster productive contributions to an institution’s work by other actors, facilitating reform and development within the institution and/or strengthening its epistemic authority. Transparency facilitates involvement of external entities in the work of an institution, and by doing so may contribute to the building of coalitions of actors (e.g. NGOs, professional associations, corporations) who can amplify the institution’s work or function as allies or engaged critics. Transparency measures can bolster symbiotic relations between global institutions and NGOs, drawing on NGO expertise and capacity for outreach to marginalized populations, and benefiting from these perspectives in policy development. Access to information may foster institutional transformation in contexts in which staff within an institution hold different views about the appropriate policies to pursue. Although the World Bank, for example, is sometimes portrayed as consistently favouring a particular 56

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Chinese banks have increased their profile as possibly less intrusive alternatives to multilateral development banks. Chinese banks were reported to have signed at least USD 10 billion more than the International Bank for Reconstruction and Development and International Finance Corporation in loans to other developing country governments and companies over roughly the same period as early as 2009–2010. Geoff Dyer/ Jamil Anderlini/Henny Sender, ‘China’s Lending Hits New Heights’, Financial Times (17 January 2011). See Kevin Davis/Benedict Kingsbury/Sally Merry, ‘Introduction: Governance by Indicators’, in Kevin Davis et al. (eds.), Governance by Indicators: Global Power through Classification and Rankings (Oxford University Press, 2012), 3–28.

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approach to economic growth and development, significant differences of opinion exist within the Bank about such matters as the appropriate definition of poverty, and the relevance of human rights to the Bank’s work. Advocates of particular views within the Bank have used external alliances with NGOs as part of a strategy to try and orient the Bank’s work towards their own approach.58 More generally, greater transparency may bring an institution greater influence, prestige or effectiveness. This dynamic is evident in the realm of hybrid public–private and private standard-setting, in which some standard-setting entities have adopted greater transparency as a means of increasing their credibility, and thus the market for their standards.59 (H10) Transparency measures can break down an institution’s epistemic authority, for example by revealing mismanagement or errors of judgement by staff. It may be difficult to distinguish situations in which an institution’s epistemic authority is diminished by its own transparency from situations in which an institution already faces criticism and performance problems and adopts transparency measures to manage these. The attacks on the Global Fund following publication of its audit reports, discussed above, may exemplify the former situation (although in that case there was also some misunderstanding in the press coverage, even misrepresentation, of what the documents actually showed). The effects of transparency on epistemic authority may be particularly significant where peer institutions are less transparent. As the Global Fund OIG commented: ‘[r]ather than being lauded for its transparency, the Global Fund was subject to criticism and given notice of possible disruptions in funding, while other similarly situated bilateral and multilateral organizations that also operate in these high risk environments escaped scrutiny’.60

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Galit A. Sarfaty, ‘Why Culture Matters in International Institutions: The Marginality of Human Rights at the World Bank’, American Journal of International Law 103 (2009), 647–683, 659–663; Antje Vetterlein, ‘Seeing Like the World Bank on Poverty’, New Political Economy 17 (2012), 35–58. This effect may be mediated through various accrediting organizations, peak bodies or criteria determining acceptability of standards for particular uses. See e.g. the announcement of updated procedures for making GlobalGAP standards: GlobalGAP, ‘Procedures for the Setting and Revision of GLOBALGAP Standards’, available at: www.globalgap.org. Global Fund, ‘Office of the Inspector General, Progress Report for November 2010–March 2011’, GF/B23/10, 11–12 May 2011, available at: www.theglobalfund.org.

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4.4

Effects for Non-State Actors

(H11) Transparency measures may multiply and diversify relationships between global institutions and non-State actors. Existing relationships between global institutions and NGOs with particular expertise in the institution’s work may have built up, formally and informally, over time. As information about the institution’s activities is made more readily available, other NGOs may realize the impact of the institution on their own field of interest, and decide to engage more intensively with its work, or at least to add their voice to those of other like-minded NGOs. (H12) Transparency measures may empower actors who are in a position to process information and render it comprehensible to others, altering the relative influence of non-State actors on the work of global institutions. As with States (H4, H5), non-State actors vary in their ability to make use of information. If the ability to digest and respond to information is determined in part by resources, transparency measures may empower better-resourced NGOs, or even corporations, relative to other non-State actors. Factors other than resources may also be important: Arthur P. J. Mol has pointed to the growing importance in environmental governance of actors who can audit, vet and accredit information, and the development of markets for information, certification and ‘trust’.61 Even where the authenticity or accuracy of information is not in doubt, the most important actors may no longer be those with special ability to obtain information, but those who can interpret this information (particularly ‘big data’), analyze it and put it to use.

5. Implications of Transparency for Structures of Political Power and Authority Changing laws and policies on access to information, taken together with active efforts to elicit or generate and process significant information, may contribute to more fundamental changes in what global governance institutions are, and in how they conceive of themselves, and are conceived of, within structures of extra-national and national political power and authority. 61

Arthur P. J. Mol, ‘The Future of Transparency: Power, Pitfalls and Promises’, Global Environmental Politics 10 (2010), 132–143, 137 and 140.

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Inter-State global institutions have comparative advantages in themselves collecting information, or even more so in persuading national governments to collect and transmit information, and in the processing and dissemination of such information. This is indeed one of their major global governance functions. The granting of greater access to information held by these institutions through transparency policies, combined with greater flows of significant information through these institutions, can render them a node or nexus for broader networks and epistemic communities (including government participants who may be highly influential). These in turn influence the institution’s programmes, knowledge and staff, and the government actors who interact with them. Transparency measures, like other procedural reforms, may allow global governance institutions to articulate their role and their relationships to individuals and organizations in new ways. Adoption of detailed formal transparency policies, incorporating a presumption of access to information regardless of the person requesting the information and the use to which it is to be put, go beyond arrangements that many institutions have introduced to consult with particular ‘stakeholders’ likely to be affected by their work, introducing a much more open conception of the institution’s relation to the world at large.62 Not only do such policies reproduce central features of what has come to be an important aspect of public law within States, but they imply a degree of responsiveness to a much larger and more diffuse public. Although policies are most likely to be invoked by those with a particular interest in the institution’s work, the public assumed by transparency policies is not located in any one concrete community. Moreover, the relation between the institution and this public, brought into being by the presumption of access, is a direct one, usually unmediated by governments. Under many of the policies surveyed here, staff of institutions are empowered to make decisions overriding specific exceptions where disclosure would be in ‘the public interest’, opening the way to development of systemic understandings of this ‘public interest’ that will inevitably demand fine-grained political and normative judgements. As suggested earlier, these may well draw on human rights or public law, but they need not; it is possible that 62

Benedict Kingsbury, ‘International Law as Inter-public Law’, in Henry S. Richardson/ Melissa S. Williams (eds.), Nomos XLIX: Moral Universalism and Pluralism (New York: NYU Press, 2008), 167–204; Benedict Kingsbury/Megan Donaldson, ‘From Bilateralism to Publicness in International Law’, in Ulrich Fastenrath et al. (eds.), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (Oxford University Press, 2011), 79–89.

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governance institutions will develop an internal account of the ‘public interest’ that is more closely connected to their particular aims. This sense of direct responsibility to a generalized public is in considerable tension with the formal identity of global institutions as inter-State bodies, or as some more complex hybrid of public and private actors, in institutions such as the Global Fund or ICANN. This tension is manifest, in particular, in conflict over the proper scope of exceptions to disclosure for draft documents and documents pertaining to ongoing negotiations. While such exceptions might be understandable in the context of negotiations between State representatives, or deliberations among experts, they are difficult to reconcile with the vision of a global governance institution as a public institution (not least where, as in the Access Info case,63 the deliberations are literally quasi-legislative). The positing of a public to which global governance institutions are responsive, together with more legalized frameworks for considering matters such as the ‘public interest’, both shapes and constrains future debate about transparency in governance. The existence of increasingly formalized transparency policies, and the seemingly powerful hold of freedom of information regimes within States on thinking about transparency in global governance, makes possible ongoing contestation of secrecy drawing on arguments familiar from public law: demands for more information to be released proactively, challenges to the boundaries of specific exceptions, routine invocation of the ‘public interest’ override to push for more liberal interpretations of the public interest in disclosure; and rejection of any exceptional override which would allow the institution to hold back information otherwise eligible for disclosure. However, the nascent laws and policies on transparency also embody a claim of political authority on behalf of existing institutions which over time many may wish to challenge. The more global governance institutions are able to formalize their interactions with an external public in terms reminiscent of public law, and construct procedures to adjudicate on their own decision-making with reference to a ‘public interest’, the more embedded and naturalized their position of political authority in structures of governance becomes, and the more difficult it will be radically to transform the existing institutional landscape.

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6. Conclusion This argument brings us back to the intimate connections between information and power, and the implications of rules regarding access to information for relations of authority. We have shown some patterns in the articulation of commitments to greater transparency, particularly in the adoption of formal transparency policies by global governance institutions, but we have demonstrated that this is not yet standard, even among major inter-governmental organizations. Where policies have been adopted, they may fall short of encompassing the full scope of the information flows and processes that are important in global governance – provision of access to large-scale raw data, for example, is difficult to address within the rubric of a policy formulated to govern the disclosure of already existing documents. Moreover, the frameworks of law and policy that determine transparency in global governance institutions will (rightly) remain contested. This heterogeneity and incompleteness notwithstanding, we have argued that it is possible to see in the laws and policies applicable to global governance institutions some pathways by which a ‘global administrative law’ of transparency may be developing. Proposals for further development of such a body of law, or for particular forms of transparency or secrecy, must take account of the complex effects of different forms of transparency for global governance institutions, States, and non-State actors. We have proposed some hypotheses as to such effects, but these effects remain primarily matters of conjecture until systematic studies are made. Finally, proposed changes in transparency norms and practices must also be weighed in terms of their implications for relations of power and authority in global governance, including their implications for the publicness and the revisability of institutions exercising power over the lives and welfare of others.

20 Towards Transparency as a Global Norm anne peters*

1. The ‘Transparency Turn’1 in Global Governance Transparency has been called ‘an overused but underanalysed concept’.2 This certainly holds true for contemporary international law. In all major fields of international law – e.g. environmental law, economic law, human rights law, international humanitarian law, health law, peace-and-security law – demands for more transparent institutions and procedures have recently been voiced by civil-society actors, by States, and within the international institutions themselves. This book tries to identify and map these quests and responses and to fill the analytical gap surrounding them. Its overall aspiration is to obtain a cross-section of the developments and debates in various areas of international law in order to lay the foundations for a broader and more systematic analysis of ‘global transparency’. Transparency is here understood as a culture, condition, scheme or structure in which relevant information (for example on law and politics) is available.3 Generally speaking, if something is transparent, you can see through it. The opposites of transparency are not only opaqueness (opacity), secrecy and confidentiality, but also complexity and * I thank my collaborators and authors Orna Ben-Naftali, Andrea Bianchi, Megan Donaldson, Lukas Musumeci, Thore Neumann and Roy Peled for careful reading and for lucid remarks on a previous version of this chapter. I am also indebted to my co-Fellows at the Wissenschaftskolleg for useful feedback: Kelly Askew, Hubertus Buchstein, Delphine Gardey, Bruce Kogan, Cristina Lafont, and Ussama Makdisi. Their input has hopefully helped improve the chapter; all remaining deficits are attributable to me. 1 I borrow this term from Aarti Gupta, ‘Transparency under Scrutiny: Information Disclosure in Global Environmental Governance’, Global Environmental Politics 8 (2008), 1–7, 6 (which the author used in discussing environmental governance). 2 Ibid., 1. 3 See for the concept in detail Andrea Bianchi, ‘Introduction: On Power and Illusion. The Concept of Transparency in International Law’, chapter 1 in this volume.

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disorder. The multitude of antonyms shows that the concept of transparency has multiple meanings itself, inter alia depending on the context. Concepts related to ‘transparency’ are ‘publicity’, ‘publicness’ and ‘openness’. While notably ‘publicity’ is a traditional term of political theory and philosophy, transparency has become a more recent buzzword. Strictly speaking, transparency is the mere accessibility of information, whereas publicity is the fact that information is actually accessed.4 Although transparency is no guarantee that publicity will really come about, these two terms will be used interchangeably in this chapter. The preceding chapters of this book have analysed the obligees and beneficiaries of transparency obligations in international law: who owes transparency to whom? They have examined the objects of transparency: what has been made transparent – institutions, procedures, meetings, documents? They have analysed the objective of transparency: to what end? They have looked at the timing: is transparency brought about in real time or in retrospect? They have looked at sanctionability: can non-disclosure be challenged and does unjustified non-disclosure involve any sanctions (of a legal or political kind or impinging on someone or something’s reputation)? And finally the book has examined the scope and nature of exceptions to transparency. Cross-cutting chapters have addressed different governance functions (rule-making,5 rule application, and dispute settlement6). Chapter 19 by Megan Donaldson and Benedict Kingsbury shows that many international organizations have adopted internal rules on transparency policies which have common features, resembling national freedom of information laws.7 The objective of this concluding chapter is fourfold. First, it seeks to draw together the findings from the chapters, against the background of the aims of the entire project and the research questions mentioned above (especially in sections 5–7). Second, it seeks to embed these 4

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Daniel Naurin, ‘Transparency, Publicity, Accountability – The Missing Links’, Swiss Political Science Review 12 (2006), 90–98, 91. Alan Boyle/Kasey McCall-Smith, ‘Transparency in International Law-Making’, chapter 16 in this volume. Thore Neumann/Bruno Simma, ‘Transparency in International Adjudication’, chapter 17 in this volume. See also the empirical study by Alexandru Grigorescu, ‘Transparency of Intergovernmental Organizations: The Roles of Member States, International Bureaucracies and Nongovernmental Organizations’, International Studies Quarterly 51 (2007), 625–648, in which the author asks which international organizations are likely to be more transparent, and why.

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findings within the broader transparency debate. This includes a discussion of the specific significance of transparency as a practice and principle in the context of globalization (sections 3–4), relations between transparency and normative concepts such as legitimacy, democracy and accountability (sections 8–13), reflections on the value, functions, and drawbacks of transparency in international law and governance, specifically in comparison to (and in combination with) domestic transparency (sections 10 and 14), and an account of the legal status of a possible transparency norm, including its relation to the human right of information (sections 4 and 17). Third, the chapter makes policy proposals for regulating transparency, especially with regard to exceptions needed for deliberations (section 15.2). Finally, this chapter interprets the rise of transparency in international law as a manifestation of a paradigm shift from a ‘private’ to a ‘public’ law-character of international law and in the end identifies lines for further research (section 19). To begin, the overall findings of this book’s chapters are striking. Institutions, processes and mechanisms in international law have, on balance, become more transparent. In addition, the trend is away from merely ‘reactive’ towards more ‘proactive’ transparency.8 States and international organizations no longer espouse only a passive posture – namely in allowing the information to be available to others if the latter so choose or if they request access or have the time, means and skills to look. Rather, the relevant entities engage in active disclosure policies. These can range from public relations measures and image campaigns (notably in the business sector)9 to outright disinformation and propaganda. All that has happened basically since the turn of the millennium.

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Helen Darbishire, ‘Proactive Transparency: The Future of the Right to Information?’, World Bank Institute Governance Working Paper Series No. 56598 (2010). For the EU in different terms (‘active’ and ‘passive’ transparency), see Anne Peters, Elemente einer Theorie der Verfassung Europas (Berlin: Duncker & Humblot, 2001), 694–697; CarlSebastian Zoellner, ‘Transparency: An Analysis of an Evolving Fundamental Principle in International Economic Law’, Michigan Journal of International Law 27 (2006), 579–628, 627; for international adjudication Thore Neumann/Bruno Simma, ‘Transparency in International Adjudication’, chapter 17 in this volume. See also Thomas N. Hale, ‘Transparency, Accountability and Global Governance’, Global Governance 14 (2008), 73–94, 75, who defines transparency as ranging from answering inquiries to general disclosure (making unsolicited information available). Richard W. Oliver, What is Transparency? (New York: McGraw-Hill, 2004), 3–4, calls the proactive posture the ‘new transparency’. Larry Catá Backer, ‘Transparency and Business in International Law: Governance between Norm and Technique’, chapter 18 in this volume.

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Mirroring Domestic Transparency?

This novel international transparency might be compared to a prior development within domestic law, namely the ‘freedom of information explosion’10 of the 1990s. In modern democratic States, ever since the eighteenth century, the publicity (or transparency) of the legislative process11 and its acts and statutes as well as of judicial proceedings have been considered necessary elements of democracy and the rule of law. In contrast, and for a much longer period, the working of the executive branch, both at the level of high politics and in day-to-day administration, has been partly secret. Transparency in this regard has been created by worldwide freedom of information laws which grant insight into previously secret administrative procedures and administrative files.12 This kind of ‘domestic’ transparency has been triggered, inter alia, by environmental and consumer movements pressing for information on environmental impact and the risks associated with certain products, as well as by the rise of the concept of ‘New Public Management’ with its expectation that transparency will increase the effectiveness of administrative activity. Additionally, transnationally active NGOs (such as Art. 19,13 Transparency International,14 and the Open Society Foundations15), international organizations, and international treaty regimes have pressed for the transparency of States. The Organization for Economic Co-operation and Development (OECD), the World Bank, the Council of Europe, the WTO, and other international bodies have championed transparency as an essential component of good governance and encouraged, if not mandated, recipients of aid, borrower States, and more generally their member States to adopt 10

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John M. Ackerman/Irma E. Sandoval-Ballesteros, ‘The Global Explosion of Freedom of Information Laws’, Administrative Law Review 58 (2006), 85–130; Patrick Birkinshaw, Freedom of Information: The Law, the Practice and the Ideal (Cambridge University Press, 4th edn, 2010), 498. See Delphine Gardey, ‘“Enregistrer” et rendre les de´bats publics en Grande-Bretagne et en France. La ste´nographie comme exigence et re´ve´lateur de la de´mocratie parlementaire?’, in Ce´cile Vigour/Claire De Galembert/Olivier Rozenberg (eds.), Faire parler le parlement: Me´thodes et enjeux des de´bats parlementaires pour les sciences sociales (Paris: Librairie ge´ne´rale de droit et de jurisprudence, forthcoming). For comparative surveys of freedom of information laws, see Toby Mendel, Freedom of Information: A Comparative Legal Survey (Paris: UNESCO, 2008); David Banisar, ‘Freedom of Information around the World 2006’, 2006, available at: www.freedominfo.org/ documents/global_survey2006.pdf. www.article19.org. 14 www.transparency.org. www.opensocietyfoundations.org.

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freedom of information laws, or at least become transparent in certain specific sectors such as trade legislation and policy. This strategy has been closely linked to the global fight against corruption, which has been recognized as a major obstacle to the realization of the core objectives of global governance – namely economic and societal development, protection of human rights, respect for the rule of law, and development. For example, the 2003 UN Convention against Corruption (UNCAC) asks each State party to ‘develop and implement or maintain effective, coordinated anti-corruption policies that promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability.’16 For similar reasons, the Council of Europe Convention on Access to Official Documents (No. 205) of 200917 requires member States to establish systems of access to their documents. A core question of this study is whether the demonstrated trend towards more international transparency is basically a repetition and reflection of that domestic development or whether it can be better understood as something different, either in part or in whole.

3. Transparency and Globalization 3.1

The Globalized Information Society

We are living in an ‘information society’,18 in the ‘information age’,19 an age in which information is a crucial resource of power and well-being. Richard W. Oliver speaks of an ‘information-transparency cycle’:

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UNGA, Report of the Ad Hoc Committee for the Negotiation of a Convention against Corruption on the Work of Its First to Seventh Sessions, A/58/422, 7 October 2003, annex: United Nations Convention against Corruption, art. 5 (emphasis added). See also arts. 7, 9, 10 and 13, requiring transparency in the public sector and in public procurement, which also demands public reporting, and transparency and participation in public decision-making. Council of Europe Convention on Access to Official Documents, 18 June 2009, CETS No. 205, not yet in force. The convention needs ten ratifications, and currently has six: Bosnia and Herzegovina, Hungary, Lithuania, Montenegro, Norway and Sweden. Eight States have signed but not yet ratified: Belgium, Estonia, Finland, Georgia, Moldova, Serbia, Slovenia and Macedonia. Scott Lash, Critique of Information (London: Sage Publications, 2002). Manuel Castells, The Information Age: Economy, Society and Culture (Malden/Oxford: Wiley-Blackwell, 2nd edn, 2010).

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information is demanded, so more information is collected, and then more is yet again demanded.20 This information-transparency cycle has become globalized. It is globalized in the first sense that improved information and network technology is an important building-block of globalization. New techniques have rendered much cheaper and faster the provision and transfer of information, for example by allowing States to place huge numbers of files on governmental websites and offering citizens the technical means to search and retrieve documents. Internet-law specialist Lawrence Lessing has put this as follows: ‘[t]he naked transparency movement marries the power of network technology to the radical decline in the cost of collecting, storing, and distributing data.’21 While the availability of new technology as such does not in itself create more transparency and may even contribute to intransparency through ‘data snowing’ or ‘data smog’,22 on balance it has indeed furthered transparency. Besides governments, globally active business (Google as the paradigmatic firm) and unauthorized action (exemplified by WikiLeaks)23 contribute to the information–transparency cycle. The information–transparency society is also globalized in a second sense, namely that in order to remain a resource of power and well-being, information (and transparency) must be available in a transboundary fashion for reasons which will now be explained.

3.2

Globalization-induced Intransparency

24

Globalization and global governance have, in at least three regards, created a novel degree of political intransparency that calls for compensatory transparency measures. First, both the increasingly global nature of political issues and the concomitant transfer of tasks and powers to international institutions have modified the nature and activity of nation-States. Even if these States, under their domestic-law obligations, 20 21 22 23

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Oliver, What is Transparency? 2004 (n 8), 22. Lawrence Lessing, ‘Against Transparency’, The New Republic (9 October 2009). Coined by David Shenk, Data Smog (New York: Harper Collins, 1997). See Andrea Bianchi, ‘Introduction: On Power and Illusion. The Concept of Transparency in International Law’, chapter 1 in this volume, section 4. Globalization is here understood as the increased transboundary flow of goods, persons, money and pollutants; the resulting economic, financial and environmental interdependency of States and other political actors; the extraterritorial effects of political decision-making at the national level; and the concomitant need for joint political and legal responses.

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must be transparent vis-à-vis their citizenry, State transparency is no longer sufficient to guarantee the overall transparency needed to hold the relevant power-holders to account because the States are no longer the only ones to wield political power. Second, State activity has many more extraterritorial effects that impact persons situated outside the acting State’s boundaries. Substantially affected persons have a legitimate interest in being informed as to these extraterritorial activities but still face a higher degree of intransparency than that which usually exists within a State’s borders. Third, the distribution of governmental functions among different actors, including those placed ‘above’ the States, in itself creates a new intransparency. Multilevel governance, the multiplication of centres of authority (polycentrism) and network-type structures make governance less transparent than ever before. Decision-making on the international level is not only often less transparent than within a State but the interplay between the multiple levels increases the intransparency. The net result is an overall reduction of transparency and notably of that kind of transparency needed to allocate responsibility for political action.25

3.3

Compensatory Transparency

These three types of globalization-induced intransparency suggest that in order to at least preserve the current level of transparency there are two things necessary. First, the transparency obligations of States must be extended to new types of beneficiaries such as foreign States, international organizations, and to those natural or legal persons not formally under a State’s jurisdiction but substantially affected by its policy decisions. Second, new types of transparency obligees must be envisaged in order to compensate for that loss of transparency which is incurred by global governance and the extraterritorial effects of State activity. A functional argument in favour of extending transparency obligations to international actors compares globalization to privatization. Privatization comprises the phenomenon of outsourcing – entities which are private-law constructs in form have been entrusted with the fulfilment of public tasks (furnishing of infrastructure, running prisons, etc.) and endowed with specific powers and funds to that end. It is generally thought that these should be subject to similar legal standards 25

See Jürgen Bröhmer, Transparenz als Verfassungsprinzip (Tübingen: Mohr Siebeck, 2004), 376.

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as formally public entities are, in order to secure proper fulfilment of these tasks and prevent the abuse of powers.26 This functional consideration has motivated ever more domestic law-makers to extend the scope of application of statutes relating to information (both data protection and access to document laws) to formally private actors who exercise public functions. Following this logic, the Council of Europe Convention on Access to Official Documents of 2009 (No. 205), which normally mandates access to official documents held by ‘public authorities’, additionally states that each party may ‘declare that the definition of “public authorities” also includes (. . .) natural or legal persons insofar as they perform public functions or operate with public funds, according to national law.’27 This line of reasoning can be extended to international organizations. Formally, these are constituted by States and are inter-public entities. From a functional perspective, they are performing tasks in the interest of all States and/or of the global publics. The policy suggestion then is that the same requirements of transparency should be imposed when public functions are ‘zoned up’ to actors ‘above’ the nation-State. The reason for this dual extension is that oversight and control is desirable in these cases as well. The exercise of functionally public power should be accompanied by accountability; and transparency and freedom of information is a vehicle to bring this about. It is therefore reasonable that international organizations should be subject to similar transparency requirements as States. The wording of Convention No. 20528 would seem to allow member States to designate international organizations – which perform public functions and operate with public funds – as ‘public authorities’ in this sense and subject them to the Convention’s transparency requirements, then operative as domestic law. To conclude, the more intense global governance becomes, the more it takes over functions that were previously fulfilled by domestic actors. Because of this impact and because of these functions, global governance 26

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A different matter is that all business actors (beyond those who are entrusted with public functions) exercise some type of ‘economic power’ which may be abused. But this does not in itself justify imposing transparency requirements on them because it differs from political power, a special type of power created by drawing together people in a common undertaking (Martin Loughlin, Foundations of Public Law (Oxford University Press, 2010), 11). Convention No. 205, 2009 (n 17), art. 1(2)(a)(ii)(3). Convention No. 205, 2009 (n 17).

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should be subject to similar (at least functionally similar) legal constraints and conditions as is national governance. Therefore the principle of transparency should also come to bear more on global governance as a constraint and condition of governance. Transparency should and can here fulfil functions similar to those in the domestic setting (social acceptance, legal certainty, accountability, rationalization), while the democratic rationale of transparency for international law-making is less straightforward (see on this section 11). That type of transparency might be called ‘compensatory transparency’ because it is intended to compensate for transparency losses that are side-effects of globalization and privatization.29 It can be understood as a manifestation of compensatory constitutionalism and multilevel governance.30

3.4

Transparency as a Global Public Good

Finally, transparency has become a global public good.31 The idea of global public goods (in the plural) draws on the notion of ‘the’ public good, but has been re-conceptualized and broadened by transferring it from the national to the global level. Global public goods in this broad sense do not necessarily qualify as pure public goods in terms of traditional economic theory, where a public good is a good that is non-rival (consumption of the good by one individual does not reduce availability of the good for consumption by others) and non-excludable (no one can be effectively excluded from using the good).32 Global public goods, as conceptualized by the United Nations Development Programme, are socially determined, not the result of market forces. They comprise rival goods which have been made (partially) exclusive, such as fish 29

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Thomas Cottier/Michelangelo Temmerman, ‘Transparency and Intellectual Property Protection in International Law’, chapter 8 in this volume. Anne Peters, ‘Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures’, Leiden Journal of International Law 19 (2006), 579–610. See the outcomes of the research programme on ‘Global Public Goods’ of the UN Development Programme: Inge Kaul/Pedro Conceicao (eds.), Providing Global Goods: Managing Globalisation (Oxford University Press, 1999); Inge Kaul/Isabelle Grunberg/ Marc A. Stern (eds.), Providing Public Global Goods: International Cooperation in the 21st Century (Oxford University Press, 2003). See also Scott Barrett, Why Cooperate? The Incentive to Supply Global Public Goods (Oxford University Press, 2010); JeanBernard Auby, La globalisation, le droit et l’Etat (Paris: L.G.D.J., 2nd edn, 2010), 174–182. Paul A. Samuelson, ‘A Pure Theory of Public Expenditure’, Review of Economics and Statistics 36 (1954), 387–389.

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stocks; they also include nonrival goods kept or made non-exclusive, such as information.33 Global public goods in that broader sense notably comprise goods which cannot in a satisfactory manner be furnished on the national level. Besides natural or cultural resources (‘common heritage of mankind’), these may also be global values or objectives34 such as transparency. Universally acknowledged values, as explicitly formulated in the UN General Assembly’s Millennium Declaration of 2000, comprise ‘good governance at the international level and (. . .) transparency in the financial, monetary and trading systems’, and ‘the right of the public to have access to information’.35

4. The Transferability of Transparency to the International Sphere Although international transparency may be desirable or even necessary, especially under the compensatory rationale,36 it might well be unfeasible. The main problem would seem to be substantive and structural differences between domestic and international law.37 But what are the relevant differences, and do they really prevent the application of a transparency norm? First of all, international law has traditionally relied on regulation by revelation for lack of stronger command-and-control mechanisms vis-àvis sovereign States. Self-reporting, disclosure requirements, third-party monitoring, blaming and shaming, and blacklisting have been regularly applied as tools for inducing behavioural changes in States and pushing them towards compliance. Besides, the currently fashionable factfinding missions are specific instruments for creating transparency. All of this has functioned relatively smoothly. As opposed to discouraging it,

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See Kaul et al., Providing Public Global Goods 2003 (n 31), 83, for an expanded concept of public goods, taking into account their socially determined status. The authors define global public goods as globalized national public goods, i.e. the sum of national public goods plus international cooperation (ibid., 10). Auby, La globalisation 2010 (n 31), 180–181. UNGA, Resolution 55/2: United Nations Millennium Declaration, A/RES/55/2, 18 September 2000, section III: Development and Poverty Eradication and section V: Human Rights, Democracy and Good Governance. See above, section 3.3. These differences and the ensuing problem of transposability also matter for deciding whether transparency can function as a principle of international law (see below, section 16).

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this certain structure of international law would seem to accommodate a transparency principle rather well. In the domestic sphere, along with information campaigns, the relatively new obligations imposed on business actors to label and report and have themselves monitored, audited and certified (with regard to products, their environmental impact, etc.) to some extent resemble the aforementioned traditional international legal approach. The specific regulatory strategy here is an indirect market-driven regulation (‘regulation through revelation’, ‘disclosure as governance’, ‘informational governance’).38 The idea is that consumers, investors, employees and other market participants who obtain these pieces of information will react with their market choices (to desist from buying a product, from investing in an enterprise, from working in a firm) and thereby pressuring the business to adapt its activity in a way that is desirable to the responsible consumer, investor, employee. Archon Fung and co-authors have called this strategy ‘targeted transparency’. It resembles market-based regulation by providing choices. Both users and disclosers are free to take no action at all. The targeted entities (e.g. business) receive their signals not directly from the regulators but from the behaviour of the users themselves. Regulation by transparency is thus a distinct form of regulation.39 In the domestic sphere, the merits of this approach to regulation (‘deregulate and disclose’) are contested. Touted as a new mode of governance by some – as an innovative, less costly, less intrusive, more market-oriented tool – it has been criticized as toothless by others. In fact, ‘informational governance’ seems to function only under certain conditions and, for instance, has not prevented scandalous misbehaviour in the field of finances and securities. In international law, the traditional reporting and disclosure requirements imposed on States bear a superficial resemblance to just that type of regulation. But there remains one crucial difference between 38

39

See Mary Graham, Democracy by Disclosure: The Rise of Technopopulism (Washington DC: Governance Institute Brookings Institution Press, 2002); James T. Hamilton, Regulation through Revelation: The Origin, Politics, and Impacts of the Toxics Release Inventory Program (Cambridge University Press, 2005); Arthur J. P. Mol, Environmental Reform in the Information Age: The Contours of Informational Governance (Cambridge University Press, 2008); Virginia Haufler, ‘Disclosure as Governance: The Extractive Industry Transparency Initiative and Resource Management in the Developing World’, Global Environmental Politics 10 (2010), 53–73. Archon Fung/Mary Graham/David Weil, Full Disclosure: The Perils and Promise of Transparency (Cambridge University Press, 2007), 48–49.

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traditional international law on ‘informational’ governance and the new domestic one: the ‘shadow of the State’, which looms behind the labelling and reporting requirements imposed by domestic law on private actors is missing on the international plane. When self-reports, public condemnations and blacklisting of States does not help to bring them into compliance with international law, stiffer enforcement mechanisms are largely lacking. A second difference is that ever more national legal systems are acknowledging citizens’ right to information – with or without a constitutional foundation. A growing number of States have an open-access policy which contains standard elements such as proactive publication of documents on websites, procedures for granting access, and review mechanisms in the case of refusal. In contrast, international organizations generally do not acknowledge the individual rights of persons to access their documents.40 In chapter 14, Antonios Tzanakopoulos argues that it is impossible to transpose the right to access information to the international legal order because this would require the existence of courts with compulsory jurisdiction.41 However, the absence of compulsory judicial review would not seem to categorically exclude the application of an individual right to information to international organizations. Some domestic freedom of information regimes still do not provide for full-fledged external judicial review but only establish agency-internal oversight mechanisms. That path has also been taken by the World Bank. Section 17 below (p. 593) will demonstrate that the international human right to information can also be reasonably applied to international organizations. Once this extension is accepted, you have minimized one structural difference between domestic and international law. Third, the international legal system lacks two core constitutional features: it is not a product of direct democratic procedures (see below section 11) and the international institutions possess neither a system of checks and balances nor a separation of powers.42 But this important ‘constitutional’ difference does not as such prevent the transferability of 40

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Megan Donaldson/Benedict Kingsbury, ‘Power and the Public: The Nature and Effects of Formal Transparency Policies in Global Governance Institutions’, chapter 19 in this volume. Antonios Tzanakopoulos, ‘Transparency in the Security Council’, chapter 14 in this volume. That is, they do not necessarily allocate the governance functions of law-making, executive action and adjudication to separate organs.

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transparency requirements to the international realm; to the contrary, it encourages it. In a State constitutional system based on the separation of powers, the tripartite system of government created by a State constitution provides for a certain amount of disclosure of government information.43 Additional transparency mechanisms are less urgent in such a setting than they are in an institutional context where the accountability mechanism inherent in the separation of powers and formal democracy is absent. As Joseph Stiglitz has pointed out: ‘the less directly accountable a governmental agency is to the public, the more important it is that its actions be open and transparent.’44 A final aspect is that for reasons of practicability, swiftness and uniformity, the foreign policy of even democratic States (including legal action such as treaty-making and participation in law-making within international organizations) has traditionally been entrusted to the executive branch and basically exempted from democratic and judicial oversight. The US Supreme Court justified this as follows: ‘[t]he nature of transactions with foreign nations, moreover, requires caution, and unity of design and their success frequently depends on secrecy and dispatch.’45 Foreign policy has been concomitantly more intransparent than domestic policy.46 However, probably in all democratic States, there has been a clear trend towards dismantling the foreign-affairs prerogatives of the executive branch and towards more intense parliamentary involvement and tighter judicial scrutiny. The traditional ‘bifurcation’ between ‘inward’ and ‘outward’ action of States is eroding because interior and foreign policy (and law) can no longer be neatly distinguished (‘world internal

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Antonin Scalia, ‘The Freedom of Information Act Has No Clothes’, AEI Journal on Government and Society, March/April (1982), 14–19, 19 criticizes the ‘obsession that the first line of defense against an arbitrary executive is do-it-yourself oversight by the public and its surrogate, the press. (. . .) [M]ajor expose´s of recent times (. . .) owe virtually nothing to the FOI but are primarily the product of the institutionalized checks and balances within our system of representative democracy. This is not to say that public access to government information has no useful role – only that it is not the ultimate guarantee of responsible government’.. Joseph Stiglitz, ‘On Liberty, the Right to Know, and Public Discourse: The Role of Transparency in Public Life’, in Matthew J. Gibney, (ed.), Globalizing Rights, The Oxford Amnesty Lectures 1999 (Oxford University Press, 1999), 115–156, 155. US Supreme Court, United States v. Curtiss-Wright Export Corporation, 299 US 304 (1936), 319, approvingly quoting the report of a Senate Committee on Foreign Relations from 15 February 1816, emphasis added. On the related aspect of confidentiality in diplomacy, see below section 15.1..

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law’).47 The blurring of the line between domestic and foreign affairs has itself undermined the possibility of neatly and reasonably distinguishing a sphere of domestic law and politics, which must be transparent, from an international sphere in which transparency seems neither feasible nor warranted.48 At the same time, the approximation of the status and functions of transparency in domestic and international law and global governance in and of itself reinforces that blurriness. To conclude, while structural and substantive differences between domestic and international law prevent a transfer of the concept of transparency as it stands from the national to the international level, not all specific features of international law strictly rule out its application. To the contrary, the rootedness and refinement of transparency-based compliance mechanisms facilitate the operation of an international transparency norm. And the absence of direct democratic mechanisms and a separation of powers actually underscores its usefulness and desirability. Without attempting to downplay the differences between domestic and international law and governance, it seems fair to say that ‘national and international transparency systems represent variations on a single governance theme.’49

5. The Object of International Transparency: What Exactly Should Be Transparent? In the sphere of politics, different actors have different views as to what exactly needs to be transparent. The reason is that they typically have diverging perceptions as to the relevance (salience, usability and comprehensibility) of information.50 In the context of international law and global governance, relevant information would seem to be information relating to those political decisions, procedures, rules, actions and the mode of functioning of the transparency obligees discussed below (pp. 549–553). It is in this context that Luis Miguel Hinojosa Martínez

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Jost Delbrück, ‘Prospects for a “World (Internal) Law”? Legal Developments in a Changing International System’, Indiana Journal of Global Legal Studies 9 (2002), 401–431. Alasdair Roberts, Blacked Out: Government Secrecy in the Information Age (Cambridge University Press, 2006), 173. Fung/Graham/Weil, Full Disclosure 2007 (n 39), 150. Gupta, ‘Transparency under Scrutiny’ 2008 (n 1), 5.

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has usefully distinguished between documentary, decision-making and operational transparency.51 In order to bring about meaningful global transparency, the information given must not only be relevant in the aforementioned sense but accurate and practically accessible (physically available, financially affordable, intellectually comprehensible) to the recipients.52 Transparency also requires giving reasons for action taken or not taken by the transparency-obligee. With regard to legal acts, this obligation is inherent in the rule of law because it is a precondition for any legal scrutiny of the lawfulness of the act.53 Within a framework of deliberative democracy, every policy should be not only justifiable or justified vis-à-vis specific addressees but publicly justified because ‘[t]he political process of justification itself shapes in several ways the nature and validity of the reasons that officials give.’54 Here public justification appears as a proxy for rightness, justice or legitimacy. From a constructivist perspective, the right to obtain a justification has been touted as the normative core of all human rights.55 To conclude, in concrete terms, global transparency may relate to a host of activities and documents of international organizations and of other forms of inter-State cooperation. A reasonable measurement of global transparency might require that international actors maintain websites, and publish the legal acts they produce, their budget, and annual activity reports. A different matter is access to deliberations, drafts, and working documents whose publication is more than the final decisions subject to countervailing considerations, see section 15. Through documentary, decision-making and operational transparency, the international actors’ decision-making processes and the outcomes of

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Luis Miguel Hinojosa Martínez, ‘Transparency in International Financial Institutions’, chapter 4 in this volume. See Mark Bovens, ‘Information Rights: Citizenship in the Information Society’, Journal of Political Philosophy 10 (2002), 317–341, 330. For example, see Treaty on the Functioning of the European Union, OJ 2010 No. C83/ 47, 20 February 2010 (TFEU), art. 296(2): ‘[l]egal acts shall state the reasons on which they are based’; Understanding on Rules and Procedures Governing the Settlement of Disputes, 15 April 1994, 1869 UNTS 401 (DSU), art. 12(7): ‘the report of a panel shall set out the (. . .) basic rationale behind any findings and recommendations that it makes’. Amy Gutmann/Denis Thompson, Democracy and Disagreement (Cambridge: Belknap, 1996), 100. Rainer Forst, The Right to Justification: Elements of a Constructivist Theory of Justice (New York: Columbia University Press, 2011).

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those processes can in principle be observed, interpreted and evaluated by outsiders, but different considerations apply to the various items.

6. The Obligees of Transparency: Who Is (or Should Be) Transparent? In international law, transparency requirements have been the classic governance tool to monitor the compliance of States with the prescriptions of international regimes (multilateral conventions, rule of international organizations, soft standards). This book mainly examines the transparency of States as induced by international law in those chapters addressing environmental matters (chapter 2 by Jutta Brunne´e and Ellen Hey, chapter 3 by Jonas Ebbesson), international taxation (Chapter 7 by Carlo Garbarini and Sebastiano Garufi), human rights agencies (Chapter 10 by Cosette Creamer and Beth A. Simmons), warfare (Chapter 13 by Orna Ben-Naftali and Roy Peled) and non-proliferation (Chapter 15 by Mirko Sossai). A different question is the transparency of international organizations. A standard textbook on international organizations summarizes the trend: ‘[s]ince the 1990s, international organizations have increasingly accepted the need to make their decisions as transparent as possible and to offer the general public as much access as possible to information concerning the work of the organization.’56 This phenomenon is examined in detail in the chapters on international financial institutions (chapter 4 by Luis Miguel Hinojosa Martínez), the WTO (chapter 5 by Panagiotis Delimatsis), the WHO (chapter 11 by Emily Bruemmer and Allyn Taylor), the UN Security Council (chapter 14 by Antonios Tzanakopoulos), international adjudication (chapter 17 by Thore Neumann and Bruno Simma) and more generally in the chapter on global governance institutions (chapter 19 by Megan Donaldson and Benedict Kingsbury). No specific chapter is devoted to the EU, whose transparency rules meanwhile resemble a full-fledged domestic regime. Since 1992, article 1 of the Treaty on European Union (TEU) speaks of a Union ‘in which decisions are taken as openly as possible’, and the European White Paper on Governance (2001) highlighted ‘open governance’ as a major 56

Henry G. Schermers/Niels M. Blokker, International Institutional Law (Dordrecht: Martinus Nijhoff, 5th edn, 2011), 255.

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principle of governance.57 Several novel provisions were enshrined in the 2007 Lisbon Treaty58 in order to make Union governance more open and transparent. Under article 10(3) TEU ‘[d]ecisions shall be taken as openly and as closely as possible to the citizen.’ Article 11 TEU reads: ‘1. The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action. 2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society. 3. The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent.’59 The new and comprehensive article 15 of the Treaty on the Functioning of the European Union (TFEU) foresees public legislative proceedings and access to documents.60 Moreover, the individual and general right of access to documents has the status of a fundamental European right (article 42 Charter of Fundamental Rights). The EU Transparency Regulation spells out the conditions of that right.61 All legal acts must give reasons (article 296 TFEU) and all legal acts must be published in the Official Journal (article 297 TFEU and article 13 of the Transparency Directive). These detailed and far-reaching transparency rules, which have been basically established and expanded in only the past twenty years, demonstrate how far a supra-State transparency regime can advance. However, despite these reforms, criticism about a

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EU, European Commission, European Governance: A White Paper, COM(2001) 428 final, 25 July 2001, section II. Treaty of Lisbon amending the Treaty on European Union and the Treaty Establishing the European Community, OJ 2007 No. C306/01, 17 December 2007. Emphasis added. TFEU, 2010 (n 53), art. 15: ‘1. In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible. 2. The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act. 3. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph’ (emphasis added). EU, Regulation (EC) No. 1049/2001 of the European Parliament and of the Council of 30 May 2001 Regarding Public Access to Documents, OJ 2001 No. L145/43, 31 May 2001 (EU Transparency Regulation). See Frank Riemann, Die Transparenz der Europäischen Union: Das neue Recht auf Zugang zu Dokumenten von Parlament, Rat und Kommission (Berlin: Duncker & Humblot, 2004).

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lack of ‘real’ transparency, especially regarding the higher levels of EU policy-making, seems to persist. Between the obligees of transparency and the beneficiaries (see below sections 6 and 7) ‘new transparency powerbrokers’ have stepped in,62 notably NGOs, commercial enterprises, and combinations of both. These brokers verify, certify, audit and distribute information. The task is for these actors to become more transparent as well. In fact, specific NGOs – but also NGOs as a whole, traditionally the ‘good guys’ in global governance – are increasingly facing the critique of being unrepresentative, undemocratic, or not sufficiently independent from governments or interest groups. They too have a legitimacy problem and enact transparency policies to counter reproaches to the contrary.63 While this book does not contain a specific chapter on NGOs, their relative intransparency is touched upon throughout. In chapter 12, Steven Ratner examines the ICRC, a unique NGO whose identity is constituted by its principle of secrecy and confidentiality.64 A difficult question is to what extent transparency requirements can be legitimately imposed on private, notably economic actors. In any liberal society under the rule of law, these actors are in a fundamentally different starting position from governmental actors. First, they enjoy liberty, including in some States the right to privacy, property and business secrecy. In contrast, States and inter-governmental organizations are from the outset limited to the exercise of specific competencies. 62

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Arthur P. J. Mol, ‘The Future of Transparency: Power, Pitfalls and Promises’, Global Environmental Politics 10 (2010), 132–143, 139. On the need for ‘intermediaries’ so that transparency might have an impact, see Megan Donaldson/Benedict Kingsbury, ‘Power and the Public: The Nature and Effects of Formal Transparency Policies in Global Governance Institutions’, Chapter 19 in this volume. On the transparency of NGOs as a component of their legitimacy and accountability, see Hetty Kovach/Caroline Nelligan/Simon Burall, The Global Accountability Report: Power without Accountability? (London: One World Trust, 2003), 21–28 and 33; Anton Vedder (ed.), The Involvement of NGOs in International Governance and Policy: Sources of Legitimacy (Leiden: Martinus Nijhoff, 2007); Monica Blagescu/Robert Lloyd, ‘Accountability of Transnational Actors: Is There Scope for Cross-sector Principles?’, in Anne Peters et al. (eds.), Non-State Actors as Standard Setters (Cambridge University Press, 2009), 270–303; Anne Peters, ‘Members of the Constitutional Community’, in Jan Klabbers/Anne Peters/Geir Ulfstein, The Constitutionalization of International Law (Oxford University Press, 2011), 153–262, 236–237. For a domestic perspective, see Nicolás Cobo Romani, ‘Transparencia, accountability y tercer sector’, in Juan Emilio Cheyre et al. (eds.), Fortalecimiento Institucional (Santiago: Pontificia Universidad Católica de Chile, 2012), 73–99. Steven Ratner, ‘Behind the Flag of Dunant: Secrecy and the Compliance Mission of the International Committee of the Red Cross’, chapter 12 in this volume.

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Second, business actors pursue activities in their own interest, their primary role being to make money and generate welfare by providing goods and employment; in contrast, it is the State’s raison d’être to fulfil tasks in the public interest. Third, business is not endowed with specific powers which resemble State powers, namely the power to unilaterally enact law which is formally binding on natural persons who have not (at least not directly) consented to it, and the institutional and physical means to enforce it (police, courts, bailiffs). The special case of actors established in legal forms provided by domestic private law (shareholder companies, anonymous societies, and the like) but entrusted with the performance of public functions (tasks in the interest of the general public) has already been discussed under the heading of compensatory transparency (see above section 3.3). Beyond those quasi-public economic actors, even ordinary business is increasingly facing societal expectations to satisfy certain ‘public’ standards, including transparency requirements. Chapter 18 by Larry Catà Backer deals with these business actors. The human rights issue as to whether the fundamental right to information is opposable to business actors is discussed below in section 17.3. The new obligees of international transparency obligations (besides States) manifest a novel functionality of transparency in the international legal system. ‘Transparency for governance’ has been supplemented by ‘transparency of governance’, to rely on a distinction made by Ronald Mitchell.65 Transparency for governance entails those policies and institutions designed to alter the behaviour of the regulatees. Under international law, these are mainly the individual States which are supposed to be brought into compliance (through monitoring, selfreporting, etc.). In contrast, ‘transparency of governance’ is those policies and institutions designed to empower a polity (in our case, a global citizenry) to observe the actions of the ‘regulators’. In international law the regulators are those States acting collectively by adopting treaties and collaborating within treaty regimes and organizations as well as those international organizations which issue secondary law and take measures. The new ‘global transparency’ signifies an extension from

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Jutta Brunne´e/Ellen Hey, ‘Transparency and International Environmental Institutions’, Chapter 2 in this volume, relying on Ronald B. Mitchell, ‘Transparency for Governance: The Mechanisms and Effectiveness of Disclosure-based and Education-based Transparency Policies’, Ecological Economics 70 (2011), 1882–1890, 1882.

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transparency for governance only to transparency of global governance itself as well.

7. The Beneficiaries of Transparency: Who Should Obtain Information? Because transparency is always relational, it matters who is and who should be the rightful recipient of a relevant piece of information. In classic inter-State law, the international transparency obligations have benefited States. For example, in disarmament law (chapter 15) the legal schemes are designed to ensure that information on arms is made available to other States but not to the general public (including potential terrorists). Also, various international environmental regimes require exporting States or export firms operating under the jurisdiction of a State party to make certain information about a traded product (e.g. genetically modified organisms, hazardous waste) available to importing States so as to obtain from the importing State the latter’s prior ‘informed’ consent (PIC).66 It would be an altogether different matter to ask for the PIC of the affected populations. The various chapters of this book reveal that the legal beneficiaries of transparency depend on the areas of international law. The circle of beneficiaries of transparency would seem to be expanding, for pure interState transparency is increasingly being seen as insufficient. On top of traditional transparency, societal actors are asking for transparency vis-à-vis themselves, and the international institutions to a certain extent respond. Individuals as transparency beneficiaries are most prominent in the field of international adjudication. Courts and tribunals regularly communicate with individuals without any mediation through States. Individuals are in the direct focus of international rules and practices on judicial transparency.67 This development might well evidence a growing perception that the ultimate constituency of international law and politics is human beings and that these form a nascent global civil society – and this apart from being organized into nation-States. We have a positive feedback loop here because granting more information to the general public in turn helps to constitute such an (imagined) global civil 66

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Jutta Brunne´e/Ellen Hey, ‘Transparency and International Environmental Institutions’, chapter 2 in this volume with further references. Thore Neumann/Bruno Simma, ‘Transparency in International Adjudication’, chapter 17 in this volume.

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society. NGOs symbolize just such a global civil society but do not in any formal sense represent a global citizenry.68 Besides informing NGOs, international organizations and regimes should also grant more information to and thereby become more transparent vis-à-vis domestic parliaments (not only towards the executive branches of States), who form important links to citizens.69

8. Transparency as a Power Shifter The emergence of international transparency as principle and practice is both a result and a promoter of shifts in power and perceptions of legitimacy. Working on the truism that ‘knowledge itself is a power’ (Francis Bacon),70 governments have traditionally attempted to guard the arcana imperii.71 Raison d’e´tat dictated the keeping of State secrets and leaving neighbours (notably ‘foes’) in ignorance as to the ruler’s plans and projects. Intransparency has long been an accomplice of statecraft. Consisting of a professional bureaucracy, the modern State preserved this ally in the form of the Amtsgeheimnis (‘office secret’). According to Max Weber, the ‘[b]ureaucratic administration always tends to exclude the public, to hide its knowledge and its action from criticism as well as it can. (. . .) The pure power interests of bureaucracy exert their effects far beyond [the] areas of functionally motivated secrecy. The concept of the “office secret” is the specific invention of bureaucracy and few things it defends so fanatically as this attitude.’72 In that early phase of international organizations, namely the Cold War era, the international legal scholar Paul Reuter espoused similar reasoning 68

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Anne Peters, ‘Dual Democracy’, in Klabbers/Peters/Ulfstein, Constitutionalization 2011 (n 63), 263–341, 315–318. For the need to distinguish between the transparency of international organizations with respect to the general public and towards NGOs, see Grigorescu, ‘Transparency of Intergovernmental Organizations’ 2007 (n 7), 641. For transparency vis-à-vis domestic parliaments, see Allen Buchanan/Robert O. Keohane, ‘The Legitimacy of Global Governance Institutions’, Ethics and International Affairs 20 (2006), 405–437, 431. Francis Bacon, Mediationes Sacrae (1597), ch. 11: Of Heresies, M4 (with regard to God). ‘Take away a government’s preserve on information, and its preserve on when and what to release, and take away a fundamental bulwark of its power’. Birkinshaw, Freedom of Information 2010 (n 10), 30. Max Weber/Guenther Roth/Claus Wittich (eds.), Economy and Society, vol. 3 (New York: Bedminster Press, 1968), ch. XI: Bureacracy, section 11B (Administrative Secrecy), 992.

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with regard to organizations that commanded global reach. For him, organizations needed to preserve an inner sphere of secrecy in order to preserve their autonomy from the member States, and thus their political power.73 The problem is the mix of political power combined with intransparency of the bases of that power: ‘[j]ust as secrecy protects (. . .) abuses of power, so it also gives those who employ it successfully more power, thus increasing their susceptibility to corruption, and in turn a still greater need for secrecy.’74 Transparency tries to break this vicious circle, thus functioning as a power-shifter, as ‘emancipatory transparency’.75 Transparency empowers outsiders because it equips them with information and thereby creates a precondition for holding power-holders to account. However, transparency does not empower all stakeholders to an equal extent. Rather, more transparency leads to a power shift from those actors who know the right people to those who possess the know-how and resources to collect, analyze and interpret the data. On average, the political actors of the First World (above all States, but also NGOs and businesses) can better exploit the opportunities for influence that are created by improving (international) transparency.76 Legal observers should not only acknowledge that ‘the battle for transparency’ is a ‘struggle for power’77 but should think about how to level the playing field for that battle.

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Megan Donaldson/Benedict Kingsbury, ‘Power and the Public: The Nature and Effects of Formal Transparency Policies in Global Governance Institutions’, chapter 19 in this volume, analyzing Paul Reuter, ‘Le droit au secret et les institutions internationales’, Annuaire français de droit international 2 (1956), 46–65, 61. Reuter relied on the institutional theory of international organizations, thus conceding them a ‘proper life’, and drew an analogy between the necessity of ‘intimite´’ for individuals as well as for social groups and institutions. Sissela Bok, Secrets (New York: Pantheon, 1982), 106. Mol, ‘The Future of Transparency’ 2010 (n 62), 135–136. Megan Donaldson/Benedict Kingsbury, ‘Power and the Public: The Nature and Effects of Formal Transparency Policies in Global Governance Institutions’, chapter 19 in this volume. See also Kristin M. Lord, The Perils and Promise of Global Transparency: Why the Information Revolution May Not Lead to Security, Democracy, or Peace (Albany: State University of New York Press, 2006), 125; Roberts, Government Secrecy 2006 (n 48), 194–195. Ann Florini, ‘Conclusions’, in Ann Florini (ed.), The Right to Know: Transparency for an Open World (New York: Columbia University Press, 2007), 348.

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9. Transparency and Shifting Perceptions of Legitimacy While the exercise of political power has always needed legitimacy (being accepted by those who are governed and deserving that acceptance) for its sustenance, throughout history the traditional relationship between transparency and legitimacy has been reversed. In the early days of statehood it was exactly the intransparency of governance which constituted a source of (religious or quasi-religious) legitimacy for the rulers.78 Secrecy constituted the ‘mystery’ (arcana-mysteria) of the State. An aura of sacredness surrounded the State, just as it did the church.79 Up to the eighteenth century, the intransparency of the State was deemed a perfectly legitimate and even necessary component of governance. The terms for political offices such as ‘secretary of state’ (derived from Latin secretum, meaning ‘secret’) or Geheimrat (in German, Geheimnis likewise means ‘secret’) manifest this outlook.80 With the onset of the Enlightenment, philosophers began to denounce State secrecy, though not necessarily in a liberal spirit.81 In his essay ‘On Publicity’ (1790), Jeremy Bentham declared that ‘Secrecy is an instrument of conspiracy; it ought not, therefore, to be the system of a regular government.’82 Jean-Jacques Rousseau suggested that all citizens be ‘constantly under the public eye’83 and that office-holders should wear a uniform so that they could never be anonymous as they went about their daily lives.84 Such projects of surveillance were ultimately totalitarian.85 78 79

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Bok, Secrets 1982 (n 74), 172–173. Ernst H. Kantorowicz, ‘Mysteries of the State: An Absolutist Concept and Its Late Mediaeval Origins’, Harvard Theological Review 48 (1955), 65–91. Mystery also had the meaning of ‘prerogative’, or ‘handicraft’, of kings (ibid., 68). On the parallel between church secrecy (arcana ecclesiae) and State secrecy (arcana imperii), see Bok, Secrets 1982 (n 74), 172. Lucian Hölscher, Öffentlichkeit und Geheimnis: Eine begriffsgeschichtliche Untersuchung zur Entstehung der Öffentlichkeit in der frühen Neuzeit (Stuttgart: Klett-Cotta, 1979), 7. See Michel Foucault, ‘L’oeil du pouvoir’, in Michel Foucault, Dits et ecrits II, 1976–1988 (Paris: Gallimard, 2001), 190–207. On Foucault see also Orna Ben-Naftali/Roy Peled, ‘How Much Secrecy Does Warfare Need?’, chapter 13 in this volume. Jeremy Bentham, ‘On Publicity’, in Michael James/Cyprian Blamires/Catherine PeaseWatkin (eds.), The Collected Works of Jeremy Bentham: Political Tactics (Oxford: Clarendon, 2001), 39. Jean-Jacques Rousseau, The Government of Poland (Willmoore Kendall trans.) (Indianapolis: Hackett, 1985), ch. XII: The Military System. Ibid., ch. XIII: Plan for a Sequence of Official Promotions Embracing All Members of the Government. Critically on Benthamite surveillance Michel Foucault, Discipline and Punish: The Birth of the Prison (Alan M. Sheridan trans.) (New York: Pantheon Books, 1977).

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In his Perpetual Peace (1795),86 if only as a thought experiment, Immanuel Kant used transparency (Publicität) as a test of legitimacy: ‘[a]ll actions affecting the rights of other human beings are contrary to right and law if their maxim is not compatible with their being made public.’87 For John Stuart Mill, publicity (transparency) was beneficial because it can ‘compel deliberation and force everyone to determine, before he acts, what he shall say if called to account for his actions.’88 Such reflections have generated the perception that government secrecy is not proper as such but rather suspect; intransparency no longer lends legitimacy to political institutions but undermines it. The interdependency between transparency, power and legitimacy implies that once political power is exercised by international organizations, they then face similar challenges as States. In order to prevent the corruption of that power and acquire legitimacy, they need to become (more) transparent. It is therefore hardly surprising that those international organizations which first experienced legitimacy crises – notably the EU89 and international financial institutions in the 1980s and 1990s90 – reacted by enacting transparency measures. The ‘legitimacy pressure’91 on these organizations led to the introduction of transparency policies in order to regain (or feign) legitimacy. The relatively novel international criminal courts and tribunals face specific legitimacy problems as well. Their existence and judgments are often contested by certain groups in post-conflict societies. This explains why these courts

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Immanuel Kant, Zum ewigen Frieden (Stuttgart: Reclam, 1984), appendix II: Von der Einhelligkeit der Politik mit der Moral nach dem transcendentalen Begriffe des öffentlichen Rechts: ‘Alle auf das Recht anderer Menschen bezogene Handlungen, deren Maxime sich nicht mit der Publicität verträgt, sind unrecht’. Ibid., ‘ein Experiment der reinen Vernunft’. John Stuart Mill, Considerations on Representative Government (South Bend: Gateway, 1962), 214. See above: section 5, text with nn 57–61. Thomas Blanton, ‘The Struggle for Openness in the International Financial Institutions’, in Florini (ed.), Right to Know 2007 (n 77), 243–278. See also the 2005 study on public access to information undertaken by seven financial and national institutions in five different countries by Catherine Musuva (ed.), Behind Closed Doors: Secrecy in International Financial Institutions (Cape Town: Institute for Democracy in South Africa and the Global Transparency Initiative, 2006). The results showed a ‘generally high level of opacity surrounding the disclosure of information related to IFIs’ (ibid., vi). Philipp Dann, ‘Der Zugang zu Dokumenten im Recht der Weltbank: Kosmopolitische Tendenzen im Internationalen Verwaltungsrecht?’, Die Verwaltung 22 (2011), 313–325, 316.

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and tribunals typically engage in outreach policies which seek to render clear and understandable their activity to the populations concerned.92 Notably the World Bank and the WTO have compelled member States or aid-recipients to establish transparency policies. These organizations have spawned the criticism that while pressuring their clients to become more transparent they have remained intransparent themselves.93 The organizations were thus compelled to abandon that self-contradictory stance so as to become credible. For example, in 2010 the World Bank introduced a Policy on Access to Information,94 which has been called a ‘small revolution’.95

10. The Value and Functions of Transparency Transparency has both an instrumental and an intrinsic value. It is a tool to support performance and increase the rationality and accountability of governance, but at the same time it is bound up with values such as democracy, rule of law, integrity and trust. The positive connotations of transparency do not warrant a naïve belief in ‘the catalytic power of disclosure (. . .) [that] if only the facts were made public, justice would follow.’96 However, the commitment to transparency manifests normative convictions, and voluntary transparency sends a political signal about these.97 One question of this book is whether the value and functions of governmental transparency also justify international transparency.

10.1

In Domestic Law and Governance

In order to answer that question, we must first briefly recapitulate the objectives of ‘domestic’ transparency. These are enumerated in the preamble of the Council of Europe Convention on Access to Official Documents (No. 205) of 2009. This Convention is a good starting point 92

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Thore Neumann/Bruno Simma, ‘Transparency in International Adjudication’, chapter 17 in this volume. On this aspect, in particular see Panagiotis Delimatsis, ‘Institutional Transparency in the WTO’, chapter 5 in this volume. WB, ‘World Bank Policy on Access to Information’, 1 July 2010, http://documents. worldbank.org. Dann, ‘Recht der Weltbank’ 2011 (n 91), 313–325, 313. Roberts, Government Secrecy 2006 (n 48), 232. Lord, Global Transparency 2006 (n 76), 17.

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because it encapsulates an international consensus on the merits of transparency,98 ‘[c]onsidering the importance in a pluralistic, democratic society of transparency of public authorities; considering that exercise of a right to access to official documents: (i) provides a source of information for the public; (ii) helps the public to form an opinion on the State of society and on public authorities; (iii) fosters the integrity, efficiency, effectiveness and accountability of public authorities, so helping affirm their legitimacy (. . .).’99 Let us look at the key terms one by one. First, Convention No. 205 evokes a democratic society and mentions accountability. The explanatory reports spells this out: ‘[t]ransparency of public authorities is (. . .) an indicator of whether or not a society is genuinely democratic and pluralist, opposed to all forms of corruption, capable of criticising those who govern it, and open to enlightened participation of citizens in matters of public interest.’100 The links between transparency and democracy as well as to accountability will be discussed below (sections 11 and 12). Second, Convention No. 205 speaks of official documents as a source of information and a means to forming an opinion. Indeed, the lack of information, like any form of artificially created scarcity, gives rise to rents. For example, politicians can exploit their control of information to reward media persons by confidential disclosures, and this may also be used by those same politicians to distort that information.101 Transparency can counteract this phenomenon. Third, Convention No. 205 seeks to improve the integrity, efficiency and effectiveness of public authorities. In fact, intransparency provides the opportunity for specially interested groups to exercise greater sway since these groups will offer rewards to office-holders for granting them information (and the concomitant greater influence).102 This situation creates a conflict of interest for the office-holder and risks undermining the office-holders’ integrity.103 Needless to say, bribery and corruption are not in the public interest. Also, so as to maintain secrecy, the circle of

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Convention No. 205, 2009 (n 17). The Convention is not yet in force, but no principled obstacle seems to prevent the attainment of a sufficient number of ratifications. Ibid., preamble. Ibid., explanatory report, in the commentary on the preamble, para. 1. Stiglitz, ‘On Liberty’ 1999 (n 44), 133–134. 102 Ibid., 132–33. For a general treatment, see Anne Peters/Lukas Handschin (eds.), Conflict of Interest in Global, Public and Corporate Governance (Cambridge University Press, 2012).

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those involved in decision-making is greatly circumscribed, which weakens the quality of decision-making.104 Fourth, the Convention’s explanatory report points out that ‘[t]ransparency of public authorities is a key feature of good governance’.105 Fifth, the Convention’s explanatory report states that ‘[t]he right of access to official documents is also essential to the selfdevelopment of people and to the exercise of fundamental human rights.’ Indeed, governmental transparency is to some extent a question of social justice because it is a precondition for the meaningful exercise of both political and social rights. Without access to governmental information, the citizens’ capacity to make rational choices and to draw up a rational life-plan is seriously hampered.106 Along these lines, the Indian right-to-information campaign used the slogan: ‘[t]he right to know is the right to live.’107 Based on all those considerations, the Convention’s preamble concludes that ‘all official documents are in principle public’.

10.2

In International Law and Governance

The book identifies similar rationales of transparency at work in international law and for purposes of global governance as in the domestic sphere. It is here too that the cluster of functions relating to accountability, participation and democracy is to the fore. For example, in international environment law, Jonas Ebbesson finds that transparency is seen as a precondition for the effective participation of civil society actors in environmental governance.108 In the area of disarmament and non-proliferation, according to Mirko Sossai, the involvement of NGOs in the ‘de facto monitoring’ of the relevant international treaties displays ‘dynamic reasons for transparency: the aim is not only that of building

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Stiglitz, ‘On Liberty’ 1999 (n 44), 137. See also the UK, Your Right to Know: Freedom of Information, Cm 3818, December 1997, para. 1.1: ‘[U]nnecessary secrecy in government leads to arrogance in governance and defective decision making’. Convention No. 205, 2009 (n 17), explanatory report, commentary on the preamble, para. 1 (emphasis added). Bovens, ‘Information Rights’ 2002 (n 52), 326. Shekar Singh, ‘India: Grassroots Initiatives’, in Florini (ed.), Right to Know 2007 (n 77), 19–53. Jonas Ebbesson, ‘Global or European Only?: International Law on Transparency in Environmental Matters for Members of the Public’, chapter 3 in this volume.

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confidence among States parties but also of encouraging democratic oversight and public scrutiny.’109 As in domestic bureaucracies, transparency is sought to maintain the integrity of the international administrations and prevent conflict of interest. Thomas Cottier and Michelangelo Temmerman relate how transparency reforms in the WIPO have been employed in reaction to an institutional crisis that was triggered by bad management and which led to biased recruitment and political favouritism.110 Good governance – notably in the form of the previsibility of a legal setting as well as legal certainty – is vital for economic actors and their business decisions, for instance for investors. These considerations have motivated transparency requirements in international investment law. Julie Maupin points out that transparency is a core component of the treaty-based fair and equitable treatment standard relating to the content of laws and regulations introduced by the host State.111 Third, transparency is also introduced in order to further the effectiveness and efficiency of international legal regimes. The welfare arguments in favour of transparency and information-sharing have been mostly raised in the financial sector, first with regard to the ordinary market participants and then with regard to the World Bank itself. It has been empirically shown (though a direct causal relationship has been difficult to establish) that a financial crisis is more likely when financial liberalization takes place in the absence of transparency.112 Luis Miguel Hinojosa Martínez explains that transparency is valuable for the World Bank as a developmental institution ‘because the design and implementation of its policies will receive input from local communities that will make its projects better adapted to the conditions in the field and thus more effective.’113

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Mirko Sossai, ‘Transparency as a Cornerstone of Disarmament and Non-proliferation Regimes’, chapter 15 in this volume. Thomas Cottier/Michelangelo Temmerman, ‘Transparency and Intellectual Property Protection in International Law’, chapter 8 in this volume. Julie Maupin, ‘Transparency in International Investment Law: The Good, the Bad and the Murky’, chapter 6 in this volume. Tara Vishwanath/Daniel Kaufmann, ‘Toward Transparency: New Approaches and Their Application to Financial Markets’, The World Bank Research Observer 16 (2001), 41–57, 48–49, with further references linking the rise of successful financial markets to the access to information. Luis Miguel Hinojosa Martínez, ‘Transparency in International Financial Institutions’, chapter 4 in this volume.

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On the other hand, some aspects of transparency seem peculiar to international law. For example, in a landscape of ‘proliferated’ and disconnected international courts and tribunals, the admission of individual judicial opinions can perform a beneficial systemic function by allowing a court (which wants to decide a legal question in a way different from other courts or tribunals) to refer to pre-existing dissenting opinions. An international judge or arbitrator thereby enters into a judicial dialogue instead of silently treading their own path. Such references are apt to strengthen the overall coherence of international law by demonstrating that the legal solution was already in the system.114 Finally, there are areas of international law in which transparency seems less needed than in the domestic sphere. For example, as Steven Ratner shows, the credibility of the International Committee of the Red Cross (ICRC) has not been undermined by its intransparency. On the contrary, the ICRC’s credibility has been enhanced. The fact that the organization gives the assurance to warring parties that it will not publicize what it sees, e.g. in detention centres, helps persuade those parties to allow access to such sites, and thus generally allows the ICRC to fulfil its role as a guardian of international humanitarian law.115 However, differences in the functionality of transparency at the domestic and international levels are mitigated by the fact that obviously the various goals of transparency are not necessarily always in alignment with each other and that their importance may vary depending on time and context and on all levels of governance.

11.

Transparency and Democracy: Domestic and International

Democracy needs transparency. The classic statement in this regard was tendered by James Madison: ‘[A] popular Government, without popular information, or the means of acquiring it, is but a prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance: [A]nd a people who mean to be their own Governors must arm themselves with the power which knowledge gives.’116 Transparency is 114 115

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Observation by Thore Neumann. Steven Ratner, ‘Behind the Flag of Dunant: Secrecy and the Compliance Mission of the International Committee of the Red Cross’, chapter 12 in this volume. James Madison, ‘James Madison to W. T. Barry’, in Philip B. Kurland/Ralph Lerner (eds.), The Founder’s Constitution (University of Chicago Press, 1987), ch. 18, document 35, writings 9: 103–109. This remark was made in the context of establishing a State-funded educational system (I thank Roy Peled for this information).

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obviously a conditio sine qua non for the informed consent of the governed. It is critical for uncovering abuses and defending interests. Transparency facilitates control and scrutiny. It allows the addressees of (national or international) norms and decisions as well as the public at large to evaluate the rationality of measures and to assess whether there is a legitimate aim behind them. Transparency may thus protect against both illegality, and overreaching and self-dealing, by governing actors. Furthermore, transparency is apt to encourage public participation. Those who are uninformed are not induced to participate actively, thus leaving the field to groups with special interests and distorting democratic processes.117 Finally, intransparency gives political incumbents a distinct advantage over their political rivals in democratic processes and thereby prevents democratic renewal. The democratic rationale of transparency as just sketched out figures prominently in most international hard and soft rules prescribing domestic transparency for States.118 In an important case, the InterAmerican Court of Human Rights described the positive-feedback loop between transparency and access to information on the one hand, and democratic control on the other: ‘[D]emocratic control by society, through public opinion, fosters transparency in State activities and promotes the accountability of State officials in relation to their public activities. Hence, for the individual to be able to exercise democratic control, the State must guarantee access to the information of public interest that it holds. By permitting the exercise of this democratic control, the State encourages greater participation by the individual in the interests of society.’119 In the absence of formal representation of a global citizenry, elections to a global parliament, and voting on global political affairs, international law and governance is not currently democratic in the traditional

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Stiglitz, ‘On Liberty’ 1999 (n 44), 135–136; Panagiotis Delimatsis, ‘Institutional Transparency in the WTO’, chapter 5 in this volume, with regard to participation in WTO activities. For instance, see the Convention No. 205, 2009 (n 17), preamble; OAS, Inter-American Democratic Charter (Declaration of Lima), AG/RES. 1 (XXVIII-E/01), 11 September 2001, art. 4; OAS, General Assembly, Access to Public Information: Strengthening Democracy, AG/RES. 2252 (XXXVI-O/06), 6 June 2006; UN, ECOSOC, Economic Commission for Europe, Report of the First Meeting of the Parties, Addendum: Lucca Declaration, ECE/MP.PP/2/Add.1, 2 April 2004, para. 2. IACtHR, Case of Claude Reyes et al. v. Chile, Judgment of 19 September 2006, 2006 Series C No. 151, para. 87 (emphasis added).

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sense of democracy within a nation-State;120 however, the international legal system might have a proto-democratic quality in which transparency plays a role. Any assessment of this matter must proceed from the real state of contemporary democratic life, not from any unattainable ideal, and observers and reformers should be prepared to accept new types of democracy without diluting the concept of democracy too much. With these two considerations in mind, the question is whether and how transparency can become democratically relevant for international actors. I submit that transparency can alleviate the democratic deficit to be found in both international organizations and international law-making processes.121 Transparency is ‘crucial to providing a reasonable semblance of democracy at the global level of decision making’;122 in other words, it is a constitutive element of a new kind of global democracy. Transparency is clearly no full substitute for formal democratic processes allowing global citizens to vote for international rules and elect the officials of international institutions; however, it can work for more democratic control and greater accountability. With regard to the IMF and the World Bank, Joseph E. Stiglitz opined: ‘[W]hen direct democratic accountability is lacking, alternative accountability mechanisms must be sought. Of these, openness and transparency are the most important.’123 Another interesting aspect is the relationship between the parliamentarization of international organizations and their degree of transparency. Empirical research found that when parliamentarians are involved in the decision-making of an international organization such as the EU, the governments of the member States will be ready to release

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Peters, ‘Dual Democracy’ 2011 (n 68), 263–341. For a pioneering work on international democracy and international transparency, see Ann Florini, The Coming Democracy: New Rules for Running a New World (Washington DC: Island Press, 2003). See also Hale, ‘Transparency, Accountability and Global Governance’ 2008 (n 8), 73–94, 73 and 91. Florini, Coming Democracy 2003 (n 121), 207. Joseph E. Stiglitz, ‘Democratizing the International Monetary Fund and the World Bank: Governance and Accountability’, Governance 16 (2003), 111–139, 133. Stiglitz continues: ‘[I]t is not just that they are fundamental to democratic processes. Public scrutiny will put a check on the most abusive practices. It can increase the likelihood that the policies that are in the general interest – not just in the special interest of, say, the financial community – are pursued. To me this is the key practical reform. The IMF, no less than democratic governments, should be subjected to Freedom of Information acts’ (ibid., 133).

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information – probably because they know that the public will receive that information anyway through the parliamentarians.124 We thus find a positive-feedback loop here as well – while more transparency is a precondition for democracy, more democracy in the form of involving parliaments will in turn increase an organization’s transparency. Theories of deliberation and reflexive democracy are apt to underscore the importance of transparency for democracy and serve as guidelines for reform. Amy Gutman’s and Denis Thompson’s book on deliberative democracy contains a chapter entitled ‘The Value of Publicity’.125 The authors write: ‘[t]he reasons that officials and citizens give to justify political actions, and the information necessary to assess those reasons, should be public. This principle of publicity is a fundamental requirement of deliberative democracy.’126 It is from this perspective that the ‘deliberative’ and ‘participatory’ process of reason-giving, of deliberation itself, shapes the objective and to some extent defines the legitimacy of the policy and thus furnishes a type of procedural legitimacy to the measures. Although this strand of thought focuses on ‘publicity’ rather than on transparency, the basic idea applies: transparency (just like publicity) contributes ‘to the desirability of the policy itself.’127 Transparency (like publicity) gives citizens not only the opportunity to decide for themselves on the merits of the reasoning that led to the policy, but also improves their chances of understanding the reasoning that led to the policy; if not, citizens ‘remain disconnected’.128 It has also been pointed out that political debate today has become far more reflexive, i.e. that the word of public authorities and scientists is no longer law. It is a style of debate no longer restricted to results and conclusions but to assumptions, starting points and presuppositions. There is thus a permanent need for background information. Hence transparency obligations and concomitant ‘information rights are not only important because they support the traditional process of democratic steering and accountability, but also because they can serve as a tool in helping to expand the reflexive nature of democracy.’129 Finally, if one believes that in post-modern democracies ‘information (rather than representation by way of vote) has become one “currency of 124 125 126 129

Grigorescu, ‘Transparency of Intergovernmental Organizations’ 2007 (n 7), 642. Gutmann/Thompson, Democracy and Disagreement1996 (n 54), ch. 3. Ibid., 95. 127 Ibid., 103, with regard to ‘publicity’. 128 Ibid., 103. Bovens, ‘Information Rights’ 2002 (n 52), 325.

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democracy”’,130 then an increased transparency of the international legal system has specific democratic value. International law-making is already to some extent deliberative and reflexive, and increased transparency would make a contribution here. In the interest of further democratization of the international legal process, transparency should be improved further.131 In practice this would mean that rule-making sessions in international organizations or conferences of the parties should combine public (live-streamed through the internet) and in camera sessions, with publicness as the basic rule accompanied by due exceptions for deliberation (see pp. 574–83), and for possible security, business and privacy reasons. This would include, maybe only with a time-lag, the publication of legislative drafts, too. The facilitation of technical access to the internet in disadvantaged world regions should be a high priority of UN politics in order to improve democratic inclusiveness. Transparency in itself does not bring about democracy – it is solely a precondition for democratic procedures.

12.

Transparency and Accountability

The exercise of political power should entail accountability.132 Because not only States but other transnationally relevant actors exercise political power, these should be accountable to their principals as well.133 Transparency and access to information are necessary components of

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Devika Hovell, ‘The Deliberative Deficit: Transparency, Access to Information and UN Sanctions’, in Jeremy Matam Farrall/Kim Rubinstein (eds.), Sanctions, Accountability and Governance in a Globalised World (Cambridge University Press, 2009), 92–122, 97, internal references omitted. Peters, ‘Dual Democracy’ 2011(n 68), 330. Accountability can be defined as ‘a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgment, and the actor may face consequences’ (Mark Bovens, ‘Analysing and Assessing Accountability: A Conceptual Framework’, European Law Journal 13 (2007), 447–468, 450). Grant and Keohane define accountability as the implication that some actors have the right to hold other actors to a set of standards, to judge whether they have fulfilled their responsibilities in light of these standards, and to impose sanctions if they determine that these responsibilities have not been met (Ruth Grant/Robert Keohane, ‘Accountability and Abuses of Power in World Politics’, American Political Science Review 99 (2005), 29–43, 29). On accountability in global governance, see Anne Peters/Till Förster/Lucy Koechlin, ‘Towards Non-State Actors as Effective, Legitimate and Accountable Standard Setters’, in Peters et al., Non-State Actors 2009 (n 63), 492–562, 524–536.

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any functioning accountability scheme.134 Transparency is valuable because it helps to alleviate (even if it can never completely rectify)135 the information asymmetry between ‘agent’ and ‘principal’. Crucially, accountability requires sanctions or disempowerment mechanisms. The most common and effective political sanction, namely democratic elections, is lacking on the global plane, and global elections by a global citizenry are unfeasible. Therefore, instead of legal and formal accountability mechanisms, non-legal and informal sanctions are to the fore, notably political and financial sanctions as well as those affecting reputation. Just like democratic elections, these sanctions are either dysfunctional or utterly impossible without transparency. Against this background, it is unsurprising that the International Law Association’s declared principles on the accountability of international organizations (2004) highlight transparency ‘in both the decision-making process and the implementation of institutional and operational decisions’ as a principle of good governance in international organizations, and thus as a principle securing their accountability.136 Another question is to whom the accountability of international law and policy-makers, notably the international organizations, should extend – to members of specific organizations, to all States, to a global citizenry? One critique is that, although those actors are accountable, they are accountable to the wrong constituencies. In this context, Allen Buchanan and Robert O. Keohane usefully distinguish between ‘narrow’ and ‘broad’ accountability.137 Broad accountability means not only allowing those who presently receive the accounts (the States, notably 134

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Hetty Kovach/Caroline Nelligan/Simon Burall, ‘One World Trust (2003): Power without Accountability?’, 2002/2003, available at: www.oneworldtrust.org, 3: table, Blagescu et al., ‘Accountability of Transnational Actors’ 2009 (n 63), 5. In a democracy, where the citizenry is the principal, an information asymmetry will always persist. Communicative structure can never be fully dialogical. This is all the more true on a global scale. (Simone Chambers, ‘Behind Closed Doors: Publicity, Secrecy and the Quality of Deliberation’, The Journal of Political Philosophy 12 (2004), 389–410, 410). International Law Association, Report of the Seventy-first Conference (London: International Law Association, 2004), part one, section one. The principles state that ‘1. IOs should, as a general rule, adopt normative decisions in a public vote; 2. Meetings of non-plenary organs should in principle be public unless inappropriate; 3. Nonplenary organs of an IO should as a general rule grant through their Rules of Procedure an appropriate status to Member States, other States, and non-State entities particularly affected by decisions to be taken or contributing to operational activities’. Ibid., 8. Buchanan/Keohane, ‘Global Governance Institutions’ 2006 (n 69), especially 427, with a link to transparency.

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the member States of specific organizations) but others (such as NGOs and populations) to contest the very terms of accountability. The gist is that ‘broad transparency is needed for critical revision of the terms of accountability.’138 The broader constituencies should be enabled in order to obtain ‘the capacity for revising the terms of accountability, and this requires broad transparency: institutions must facilitate positive information externalities to permit inclusive, informed contestation of their current terms of accountability.’139 Seen in this way, transparency becomes even more important for accountability because it can address the accountability mismatch. But transparency also works in the other direction. The institutions themselves are aware of the fact that information about them is spread through NGOs. But they do not know exactly what is publicly known. This will be an incentive to avoid behaviour for which they may be criticized.140 This mechanism is also apt to increase accountability.

13. Transparency as a Proxy Transparency, participation and accountability constitute the tryptichon of global good governance. The frequent mentioning of these kindred values in international political and legal texts is owing to the expectation that transparency will increase the accountability of the international actors and enhance participation. But is not transparency merely a surrogate, replacing the much more difficult substantive issues of democracy, good governance, economic efficiency, social justice and the rule of law?141 Is the quest for transparency misguided because it aims only at the symptoms and hides the causes? Is it ‘a triumph of form over results’?142 Does not striving for transparency become ‘a distraction, diverting time and resources from substantive outcomes’?143 Are we merely performing ‘rituals of verification’?144 Have we erected an ‘ideology of transparency’ which 138 140

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Ibid., 428. 139 Ibid., 429. Buchanan and Keohane have called this a ‘productive uncertainty’ (Buchanan/ Keohane, ‘Global Governance Institutions’ 2006 (n 69), 430). See Haufler, ‘Disclosure as Governance’ 2010 (n 38), 70, on transparency as a ‘default option’. See ibid., 69, on the Extractive Industries Transparency Initiative. Gupta, ‘Transparency under Scrutiny’ 2008 (n 1), 4. Michael Power, The Audit Society: Rituals of Verification (Oxford University Press, 1997).

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replaces the true democratic ideal?145 With regard to the private sphere, Larry Catá Backer points out that transparency here is a substitute which ‘does not seek to directly engage the foundational ideology’ of shareholder welfare-maximization (as opposed to also taking into account stakeholder concerns).146 Transparency might be ‘too soft to create real accountability’.147 More pernicious even, the focus on transparency might prove counterproductive by conveying a false impression of accountability, which in turn serves as a pretext for not tackling the hard problems and thus ultimately preventing political reform. In contrast to these sceptical voices, Allen Buchanan and Robert Keohane suggest that transparency can serve as a proxy for the satisfaction of legitimacy criteria.148 The reason is that it is ‘easier for outsiders to discover whether an institution is not responding to demands for information relevant for determining whether it is violating its own prescribed procedures, than to determine whether it is in fact violating them.’ It is relatively easy to tell whether an international organization generates or systematically restricts access to the information that outsiders would need in order to evaluate its effectiveness. ‘If an institution persistently fails to cooperate in making available to outsiders the information that would be needed to determine whether [certain legitimacy criteria] are satisfied, that by itself creates a presumption that it is illegitimate.’149 There does exist the danger that certain types of transparency will degenerate to ‘empty titles of legitimacy’.150 But the transparency discourse is ambivalent and use of the concept ranges from good faith to cynicism. More importantly, the debate on transparency not only ‘masks’ other issues behind it but itself reconfigures the reality of global 145

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Pierre Rosanvallon, La contre-democratie: La politique à l’age de la de´fiance (Paris: Seuil, 2006), 262: ‘la perspective de la transparence se substitue dore´navant à un exercice de la responsabilite´ que l’on a de´sespe´re´ de pouvoir organiser; elle accompagne une sorte d’abandon des objectifs proprement politiques au profit de la valorisation de qualite´s physiques ou morales (. . .). Une ve´ritable ide´ologie de la transparence c’est ainsi peu à peu e´rige´e en lieu et place de l’ide´al de´mocratique de production d’un monde commun’. Larry Catá Backer, ‘Transparency and Business in International Law: Governance between Norm and Technique’, chapter 18 in this volume. See Hale, ‘Transparency, Accountability and Global Governance’ 2008 (n 8), 74. See Buchanan/Keohane, ‘Global Governance Institutions’ 2006 (n 69), 428. The authors’ legitimacy criteria are minimal moral acceptability, comparative benefit and integrity. Ibid., 429. 150 Hölscher, Öffentlichkeit und Geheimnis 1979 (n 80), 170.

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governance. The gist is that transparency is indeed a substitute but a necessary one because it replaces, in a global and pluralistic political space, the unattainable certitude and conviction about the ‘right’ international law and policy through a procedural device allowing everyone to form their own opinion on matters of global governance. Accompanied by mechanisms of participation, transparency helps to shape and revise those matters of global governance through public debate.151 For example, transparency in international patent law has led to the involvement of competitors and NGOs such as Greenpeace and has thereby improved the balancing of the divergent interests at stake when conferring exclusive rights, as shown by Thomas Cottier and Michelangelo Temmerman in Chapter 8. The importance of transparency, even if only a proxy for outcomes, is demonstrated by the fact that with regard to many international events, such as environmental catastrophes or financial scandals, the lack of transparency regarding causes and governmental reactions or omissions often eclipses the perceived importance of the event itself.152 Japanese information policy in the aftermath of the nuclear catastrophe of Fukushima in 2011 is a recent example. To conclude, while transparency policies to a certain degree generate only an ersatz legitimacy and may even at times be counterproductive, they more often seem ‘a reasonable initial step’153 towards improving the accountability and legitimacy of international law and governance.

14.

Drawbacks of Transparency

Transparency must not be excessive. Too much transparency, the ‘wrong kind’ of transparency,154 transparency in the wrong moment, transparency with respect to certain contents or towards certain recipients may cause political and social problems both in terms of domestic and international law as well as regarding governance.155 The chapters of 151

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It is of course difficult to prove any causal relation between the procedural requirements of information disclosure and substantive improvements (for example in environmental policy). (Mol, ‘The Future of Transparency’ 2010 (n 62), 138.) Oliver, What is Transparency? 2004 (n 8), 1; Mol, ‘The Future of Transparency’ 2010 (n 62), 139. Haufler, ‘Disclosure as Governance’ 2010 (n 38), 70. Andrea Prat, ‘The Wrong Kind of Transparency’, American Economic Review 95 (2005), 862–877. From a comprehensive international relations perspective, see Lord, Global Transparency 2006 (n 76).

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this book highlight some typical or possibly negative effects of too much transparency. Analytically speaking, we can first of all distinguish between the intrinsically negative effects of transparency, notably the dangers posed to the quality of deliberations, and countervailing legitimate interests such as security,156 privacy and business or trade secrets.157 Second, as is the case with basically all policies, transparency measures have their financial costs and may be unfeasible due to time and space constraints. Third, transparency may only be simulated through data-flooding (‘drowning in disclosure’),158 disinformation and propaganda, something which has traditionally played an important role in international relations.159 Orna Ben-Naftali and Roy Peled cite the example of then US Secretary of State Colin Powell’s speech before the UN Security Council in February 2003 on alleged Iraqi weapons of mass destruction, which persuaded the American public of the need to go to war in Iraq, although it was gross misinformation.160 However, the remedy against information overload and disinformation seems not to be the reduction of transparency but rather increased transparency and the use of filtering systems to distinguish hokum from real information. Transparency has been further criticized as undermining trust. It has been argued that ‘excessive’ transparency policies have not reduced but even fuelled public distrust, ultimately because of misinformation and

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Anne Peters, ‘Transparency, Secrecy, and Security: Liaisons Dangereuses’, in Julia Iliopoulos-Strangas/Oliver Diggelmann/Hartmut Bauer (eds.), Rechtsstaat, Freiheit und Sicherheit in Europa/Rule of Law, Freedom and Security in Europe/Etat de droit, liberte´ et se´curite´ en Europe, Societas Iuris Publici Europaei vol. 6 (Baden-Baden: Nomos, 2010), 183–243. For example, see Agreement on Trade-related Aspects of Intellectual Property Rights, 15 April 1994, 1869 UNTS 299, art. 39. IAEA, Model Protocol Additional to the Agreement(s) between State(s) and the International Atomic Energy Agency for the Application of Safeguards, INFCIRC/540 (Corrected), September 1997, art. 15 requires the International Atomic Energy Agency to ‘maintain a stringent regime to ensure effective protection against disclosure of commercial, technological and industrial secrets and other confidential information coming to its knowledge’. Gupta, ‘Transparency under Scrutiny’ 2008 (n 1), 4. Holzner and Holzner quote a senior official of the EU: ‘[t]he impression of transparency is that it is a straight ray of light. But it can be simulated by a thousand mirrors’. (Burkart Holzner/Leslie Holzner, Transparency in Global Change: The Vanguard of Open Society (University of Pittsburgh Press, 2006), 102). Orna Ben-Naftali/Roy Peled, ‘How Much Secrecy Does Warfare Need?’, chapter 13 in this volume.

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information overflow.161 This view seems one-sided because intransparency is also apt to generate distrust. Secrecy is often understood to indicate bad intentions, and disclosure is perceived as a sign of trustworthiness.162 Moreover, in judging whether to place our trust in a certain entity or to deny it our trust, we must first have sufficient information. With regard to international relations, liberals such as the German Karl Heinrich Ludwig Pölitz realized this as early as the nineteenth century: ‘Sollen Völker unter rechtlichen Verhältnissen neben einander bestehen, und die wechselseitigen Verbindungen des Handels und des übrigen Verkehrs durch ihr gegenseitiges Zutrauen begründet, erleichtert und gesichert werden; so muß jedes Volk wissen, wie es mit dem andern daran ist. Dies kann nur durch gegenseitige Oeffentlichkeit bewirkt werden.’163 In contemporary international law with respect to disarmament, one of the ‘essential functions’ of verification is ‘to prevent any risk of cheating and to build confidence’ – as Mirko Sossai points out.164 So, while greater transparency as such is no guarantee that fewer misunderstandings will take place and increased trust will ensue, transparency is more often than not perceived to build trust rather than to undermine it. 161

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Onora O’Neill, A Question of Trust, The BBC Reith Lectures 2002 (Cambridge University Press, 2002), see especially 70: ‘[i]f we want to restore trust we need to reduce deception and lies rather than secrecy. Some sorts of secrecy indeed support deception, others do not. Transparency and openness may not be the unconditional goods that they are fashionably supposed to be. By the same token, secrecy and lack of transparency may not be the enemies of trust’. Florini, ‘Conclusions’ 2007 (n 77), 339. On trust-building through transparency, see Jutta Brunne´e/Ellen Hey, ‘Transparency and International Environmental Institutions’, chapter 2 in this volume. In chapter 11 in this volume, Emily Bruemmer and Allyn Taylor recall that with respect to the intransparency of an emergency committee, WHO found that ‘[a]lthough confidentiality represented an understandable effort to protect the members from external pressures, this paradoxically fed suspicions that the organization had something to hide’ (WHO, Sixty-fourth World Health Assembly, Implementation of the International Health Regulations (2005): Report of the Review Committee on the Functioning of the International Health Regulations (2005) in Relation to Pandemic (H1N1) (2009), Report by the DirectorGeneral, A64/10, 5 May 2011, 16). ‘Should nations coexist in legal relations, and the mutual links of commerce and the other traffic be founded, facilitated, and secured through their mutual trust; then every people must know how it stands with the other. This can only be achieved by mutual publicity.’ Karl H. L. Pölitz, Die Staatswissenschaften im Lichte unserer Zeit, vol. 1, Leipzig 1847, 133 (emphasis added; trans. by this author). See also Hölscher, Öffentlichkeit und Geheimnis 1979 (n 80), 169. Mirko Sossai, ‘Transparency as a Cornerstone of Disarmament and Non-proliferation Regimes’, chapter 15 in this volume.

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An important point is that transparency measures can be circumvented: the legal and political actors might hold conclave behind the façade of the public meeting, keep secret files apart from those that are public, or minimize record-keeping altogether. If such are the foreseeable or inevitable consequences of transparency or too much transparency in a certain context, in the end the entire policy will be rendered ineffective or even counterproductive and thus create yet more intransparency. For example, Luis Miguel Hinojosa Martínez predicts venue-shifting for those sensitive negotiations on the regulation of financial markets, spending cuts, or budgetary priorities if they were to be conducted under constant public scrutiny. He concludes that excessive disclosure would likely transfer those negotiations to ‘less formal and more opaque forums and would seriously hamper the role of international financial institutions as trusted advisors.’165 The likelihood of such effects must be gauged by the designers of such institutions. In the international as in the domestic realm, some types of transparency may also engender nothing more than a ‘politics of spectacle’166 in which neither the decision-makers nor the public truly engage. In international investment arbitration, Julie Maupin gives a mixed assessment of the danger of politicization. As for the ‘worry that transparent proceedings might “re-politicize” investor-state disputes’, she regards it as ‘misplaced’; but purely contract-based claims may introduce different considerations.167 Extensive transparency about legal and political processes can bring about an ‘ersatz public reason’, a ‘plebiscitary reason’, which is shallow or appeals to the worst human instincts.168 But from a realistic standpoint, modern democracy will always to some degree produce these effects. To conclude, transparency can be beneficial and pernicious, and the overall effects depend on what is revealed, when it is revealed, and to whom. As a governance mechanism, transparency is a double-edged sword.

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Luis Miguel Hinojosa Martínez, ‘Transparency in International Financial Institutions’, chapter 4 in this volume. Roberts, Government Secrecy 2006 (n 48), 236. Julie Maupin, ‘Transparency in International Investment Law: The Good, the Bad and the Murky’, chapter 6 in this volume. Chambers, ‘Behind Closed Doors’ 2004 (n 135), 389, 393 and 398.

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15.

Transparency and Deliberation: Which Exceptions Are Needed and When?

A core question is to what extent transparency undermines the quality of deliberations, because deliberation is at the centre of all types of international decision-making and setting up of rules, in conferences of the parties, in compliance monitoring bodies, or in international courts and tribunals, and notably in diplomatic negotiations.

15.1

Transparency and Diplomacy

A related aspect is the traditional ethos of confidentiality in diplomacy. A British diplomat wrote: ‘the old principle that the art of negotiation depends on reliability and confidence is an eternal principle.’169 An aggravating factor was that, historically, diplomacy had been an aristocratic affair and to that extent profoundly anti-democratic: ‘in the days of the old diplomacy it would have been regarded as an unthinkable vulgarity to appeal to the common people upon any issue of international policy.’170 The more the processes of international law move away from the diplomatic mode, the more they lend themselves to publicity. This not only applies to law-making but also to the settlement of disputes. In the 1950s it was still worth pointing out: ‘[D]ans son origine la justice internationale s’affirme par une diffe´renciation des proce´de´s diplomatiques, notamment dans la mesure où les commissions mixtes diplomatiques se transforment progressivement en commissions arbitrales. Il est donc naturel qu’elle e´volue e´galement vers des formes et des proce´dures de plus en plus ouvertes à la publicite´, ainsi que le prouvent notamment les statuts des Cours internationales proprement dites.’171 Moreover, even in the realm of diplomacy, opaqueness has probably never been an absolute value. By the late nineteenth century, governments realized that they could achieve foreign policy objectives only with the support of the domestic public. They therefore attempted to pursue a dual strategy: secrecy towards the foreign States, but openness towards their people. The German Chancellor Otto von Bismarck understood this trade-off but did not say how it was to be attained: ‘[I]nwieweit nun die Geheimhaltung, die diskrete Schonung des internationalen 169 170

Harold Nicolson, Diplomacy (Oxford University Press, 3rd edn, 1963), 255. Ibid., 168. 171 Reuter, ‘Droit au secret’ 1956 (n 73), 64.

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Vertrauens, dem Bedürfnisse, die Öffentlichkeit rechtzeitig aufzuklären über den politischen Gang der Regierung, geopfert werden darf, ist eine schwer zu entscheidende Frage.’172 An extension of this is the newer strategy of ‘public diplomacy’, which includes the endeavour to persuade the foreign public. A recent example of a commitment to transparent diplomacy is the climate negotiations. The conference/meeting of the parties of the UNFCCC and Kyoto Protocol (COP 16/CMP 6), held in Cancun in 2010, was explicitly conducted under the heading of transparency. This was in line with the pertinent UNFCCC guidelines173 but was also specifically highlighted by the hosts: the Mexican conference president gave ‘full commitment to the principles of transparency and inclusiveness. There will be no parallel or overlapping discussions and I will continue ensuring that all positions are taken into account.’174 What is at stake when making (diplomatic) deliberations transparent?

15.2

Negative Effects of Transparency

Hans Morgenthau warned against ‘the vice of publicity’ in diplomatic negotiations: ‘[i]t takes only common sense derived from daily experience to realize that it is impossible to negotiate in public on anything in

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‘To what extent secrecy, the discrete consideration for international trust, may be sacrificed for the desire to inform the public timely about the political course of government, is a question that is difficult to decide.’ Speech in the 24th session of the Reichstag of the Norddeutscher Bund, 22 April 1869, in Otto von Bismarck, Werke in Auswahl, vol. 4 (Stuttgart: Kohlhammer, 1968), 334–337, 336; see also Hölscher, Öffentlichkeit und Geheimnis, 1979 (n 80), 168. The guidelines for the participation of representatives of non-governmental organizations at meetings of bodies of the United Nations Framework Convention on Climate Change (UNFCCC) of March 2003 state in their introduction that ‘the access and participation of observers to the process promotes transparency in this increasingly complex universal problem’. UNFCCC, Informal Stocktaking Plenary: Statement by Her Excellency, Mrs Patricia Espinosa, COP 16/CMP 6 President, 8 December 2010. In the same sense, see the informal meeting of the president, statement of 5 December 2010: ‘[T]he Mexican Presidency will continue to work with full transparency and according to established United Nations procedures’. See also UNFCCC, Subsidiary Body for Implementation, Synthesis Report on Ways to Enhance the Engagement of Observer Organizations, FCCC/SBI/2010/16, 19 October 2010, with a view to the 33rd session in Cancun, 30 November to 4 December 2010, with proposals for ‘ensuring transparency, accountability and information-sharing’ (paras. 16–17 and 26–28).

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which parties other than the negotiators are interested.’175 In a judgment relating to the Watergate scandal, the US Supreme Court stated: ‘[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candour with a concern for appearances and for their own interests to the detriment of the decision-making process.’176 Therefore, in order to mitigate the negative effects of transparency on deliberations, transparency laws and policies will typically contain ‘deliberative exceptions’. For example, in the EU, access to an institutional document ‘which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.’177 Luis Miguel Hinojosa Martínez quotes the World Bank’s justification for secret deliberations: ‘if the view of each ED [Executive Director] is immediately known to the public, it may put undue pressure on EDs, and could also politicize the Bank’s decision-making process’ – and above all for those executive directors who represent several constituencies.178 Are deliberation exceptions justified? What exactly are the inhibiting effects of allowing non-participants to listen to deliberations? Sissela Bok has described these as follows:179 when deliberating before an audience, the deliberants tend to become more inflexible, more radical, and/or they lose candour, becoming averse to risky or innovative opinions. 175

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Morgenthau continued: ‘[T]his impossibility derives from the very nature of negotiation and from the social context in which negotiations generally operate (. . .). This degeneration of diplomatic intercourse into a propaganda match is, then, the inevitable concomitant of the publicity of the new diplomacy’. Hans Morgenthau, Politics among Nations (New York: Alfred A. Knopf, 1950), 431–433. US Supreme Court, US v. Nixon, 418 US 683 (1974), 705. EU Transparency Regulation, 2001 (n 61), art. 4(3). Under the IMF Transparency Decision of 17 March 2010, the Executive Board of the IMF will not allow publication when it may undermine ‘the Fund’s decision-making process’. On ‘deliberative information’, also see WB, ‘World Bank Policy on Access to Information’, 2010 (n 94), section 16 (see Luis Miguel Hinojosa Martínez, ‘Transparency in International Financial Institutions’, chapter 4 in this volume). In the WTO dispute settlement, panel and Appellate Body deliberations are confidential (DSU, 1994 (n 53), art. 14(1) and 17 (10)). On the related working procedures and case law, see Panagiotis Delimatsis, ‘Institutional Transparency in the WTO’, chapter 5 in this volume. See WB, Operations, Policy and Country Services, ‘Toward Greater Transparency through Access to Information: The Bank Disclosure Policy’, 16 October 2009, accessible via: http:// siteresources.worldbank.org, annex B, para. 11. Luis Miguel Hinojosa Martínez, ‘Transparency in International Financial Institutions’, chapter 4 in this volume. Bok, Secrets 1982 (n 74), 175 and 184.

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Transparency tempts the participants to rigidity and to posturing, increasing the chances of a stalemate in which no compromise is possible, or alternatively, of a short-circuited and hasty agreement. To pull back from a bargaining position, often done solely for strategic purposes, might be interpreted, if done in full view of the public, as giving in to an opponent. The public gaze tempts deliberators to bypass creative or stilltentative ideas and leads to premature closure. In sum, the chances for collective learning are diminished. Concomitantly, the beneficial effect of excluding the public from deliberations is that this allows for fuller consideration of the matter at hand. Deliberators dare to express controversial views behind closed doors, but they also feel as if they have greater freedom to change their minds. They can engage in a tentative process of learning and of assimilating information, considering alternatives and weighing consequences – all of which is needed to arrive at a coherent position. In sum, deliberation behind closed doors can proceed through a process of trial and error, through proposal and counterproposal, through persuasion and bargaining, and sometimes through threat. This is impossible with pressure from the public, including that exerted by special interest groups.180 The judicial deliberation and drafting of decisions is usually shielded from scrutiny in the sphere of international adjudication, and the rules of various international courts show ‘a considerable degree of uniformity’ in this respect.181 Neumann and Simma mention a number of reasons why the secrecy of deliberations in international adjudication is even more important than in the domestic realm – notably to prevent governments from controlling judges.182 In international law-making (treaty negotiations), an aggravating factor of transparency is that the inflexibility and posturing of participants as well as the public pressure of domestic constituencies or special interest groups may frequently lead to a complete breakdown of negotiations so that no desirable outcome results. In fact, these were the reasons given by the representatives of the Great Powers at the opening of the 1919 Paris Peace Conference: ‘[O]pen proceedings would lead to premature public controversy, not only within the interested States, but 180 181

182

Ibid. Thore Neumann/Bruno Simma, ‘Transparency in International Adjudication’, chapter 17 in this volume. Ibid.

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between the interested nations, render infinitely more difficult the process of give and take, so essential to the negotiations, and hinder the unanimity of agreement which is vital to success’.183

15.3

Positive Effects of Transparency

The intransparency of the Paris Peace Conference was all the more conspicuous as it was only shortly before that American President Woodrow Wilson had stated in his Fourteen Points – ‘the only programme of the world’s peace’ – that there should be ‘[o]pen covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind, but diplomacy shall proceed always frankly and in the public view’.184 This ideal programme for transparency (one that was not to be realized) had been motivated by a concern for international peace and security. At the beginning of the twentieth century the European practice of secret diplomacy had contributed to an atmosphere of mutual distrust among nations which in hindsight was seen as a catalyst for the outbreak of World War I. Gaining ground by the end of the war was the idea that democracy and the power of public opinion would be an effective means of preventing war.185 The expectation was that transparency (public scrutiny) would restrain States from concluding treaties which would risk public disapproval, thus making it more difficult to cloak activities antithetical to world peace and security under the mantle of the law.186 Another beneficial effect of a public audience for deliberations is what Jon Elster has called the ‘civilizing force of hypocrisy’.187 Publicity (transparency) might force law-makers and decision-makers to explain 183

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Geo Finch, ‘The Peace Conference of Paris 1919’, American Journal of International Law 13 (1919), 159–186, 167. It was based upon this reasoning that the conference adopted the rule that the press should be admitted to plenary sessions but not to commissions and committees. In addition, ‘upon necessary occasions’, the deliberations of the plenary could be closed as well. President Wilson in a joint session of the US Congress on 8 January 1918. Karl Willhelm Geck, ‘Die Registrierung und Veröffentlichung völkerrechtlicher Verträge’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 22 (1962), 113–211, 122–23. Karl Zemanek, ‘Geheimverträge’, in Karl Strupp/Hans-Jürgen Schlochauer (eds.), Wörterbuch des Völkerrechts, vol. 1 (Berlin: Walter de Gruyter, 1960), 633–635, 634. Jon Elster, ‘Deliberation and Constitution-Making’, in Jon Elster (ed.), Deliberative Democracy (Cambridge University Press, 1998), 97–122, 111. On the empirical testing of that hypothesis, see the text below together with nn 196–199.

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their positions with reference to socially acknowledged norms. Social pressure will cause them to base their statements on claims of general interest rather than on selfish appeals. Even if hypocritical, these statements may still generate better outcomes because the ‘bad’ arguments are officially banned and therefore have much less power to influence the decision that is ultimately reached.188 With regard to international treaty-making, an important aspect is its two-level setting. Here, too, transparent treaty negotiations may indeed fail to produce a treaty text due to the inhibiting effects stated above. However, while secret negotiations might lead to a treaty text, this treaty must eventually be published; if it then fails to gain the support of the domestic public, it will not be ratified. Transparency must be carefully timed and parcelled so as to avoid this catch-22 situation.

15.4

Determining the Proper Mix

The ‘deliberation exception’ is the most intriguing challenge to the quest for transparency because here the proponents of intransparency claim to further precisely those objectives which the principal rule of transparency also seeks to promote, namely enabling and improving deliberation and better decision-making.189 Unfettered transparency would work against the rule’s rationale. This implies that absolute transparency is not to be recommended. So the problem for institutional designers is to properly mix the transparent and intransparent elements of deliberations and to adequately circumscribe the zones and phases of intransparency. When creating closed spaces for deliberation it should first be kept in mind that the deliberators themselves tend to exaggerate the need for intransparency. Second, the issue is to some extent historically contingent. In early parliamentarianism, 188

189

Jon Elster focused not only on public-versus-private communicative action but contrasted the communicative modes of ‘arguing’ (reason-giving) and ‘bargaining’ (threats and promises). He thought that ‘secrecy tends to induce bargaining and publicity to induce argument’ (Jon Elster, ‘Strategic Uses of Argument’, in Kenneth J. Arrow et al. (eds.), Barriers to Conflict Resolution (New York: Norton, 1995), 237–257, 252). ‘Roughly speaking, arguing is better than bargaining because of the civilizing force of hypocrisy, and private settings are better than public settings because they leave less room for pre-commitment strategies and overbidding (. . .). The real choice, therefore, may be between the second-best and the third-best options’ (ibid., 250). (Original in Jon Elster, Arguing and Bargaining in Two Constituent Assemblies, The Storrs Lectures (New Haven: Yale Law School, 1991). For a good exposition of the problem, see Gutmann/Thompson, Democracy and Disagreement 1996 (n 54), 114–126.

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deliberative secrecy was reclaimed for processes for which we nowadays deem transparency clearly appropriate, such as parliamentary debates and constitution-making.190 For example, the American Constitutional Convention of 1787 deliberated behind closed doors and only presented its work to the public when it had a finished product. James Madison, who defended secret deliberations in this case, later wrote that ‘no Constitution would ever have been adopted by the convention if the debates had been public.’191 Today, in an era in which constitution-making is closely monitored and steered by international institutions and thus to a large extent ‘internationalized’, such intransparency is inconceivable. For example, the European Constitutional Convention of 2004 was not only a public affair but actively sought input from the European citizenry. This could however not prevent the Constitutional Treaty’s ratification failing so that the Treaty never entered into force.

15.5

Empirical Findings

Finally and most importantly, the granting of ‘deliberation exceptions’ and their extension and timing should be based on systematic research into this matter. The beneficial and obnoxious effects of transparency/ publicity on communicative action have been theoretically modelled and empirically tested with regard to numerous deliberations (constitutionmaking, treaty-making, decision-making in the EU Council of Ministers,192 and the like).193 The classic historical study is Jon Elster’s 190

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In early parliamentarianism (which began in England in the seventeenth century), there was a debate over whether parliamentary debates should be public or closed. The common expectation was that deliberations would be hampered by publicity. Secrecy was only gradually abandoned. See David Stasavage, ‘Open-Door or Closed-Door Transparency in Domestic and International Bargaining’, International Organization 58 (2004), 667–704, and specifically 688 for further references. Max Farrand (ed.), The Records of the Federal Convention of 1787, vol. 3 (New Haven: Yale University Press, 1911), CCLXVII: Jared Sparks: Journal. David Stasavage, ‘Does Transparency Make a Difference? The Example of the European Council of Ministers’, in Christopher Hood/David Heald (eds.), Transparency: The Key to Better Governance, Proceedings of the British Academy 135 (Oxford University Press, 2006), 165–179. He finds that the closed-door setting of Council decisionmaking has facilitated attempts to strike bargains, for there has been a greater propensity for ‘real’ deliberation in most secretive settings (such as COREPER and the economic and financial committee). See notably Stasavage, ‘Open-Door or Closed-Door?’ 2004 (n 190), 667–704, for a game-theoretical model on the relative benefits of open-door versus closed-door bargaining. Ellen E. Meade and David Stasavage developed a theoretical model of

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comparison of the public deliberations of the Assemble´e constituante in France of 1789 and the secret deliberations of the American Constitutional Convention in Philadelphia in 1787. Elster found that the non-public American constitutional debate was of a high quality, remarkably free of cant, and grounded in rational argument. In contrast, the public debates of the Assemble´e were heavily tainted with rhetoric, demagoguery and overbidding.194 With regard to international treatymaking, Barbara Koremenos has sought to demonstrate that transparency may often lengthen the bargaining process and give interest groups too much influence on the treaty’s design, which might then lead to the treaty’s rejection by powerful States and even make it impossible to achieve outcomes with net social benefits.195 Jon Elster’s aforementioned hypothesis on the ‘civilizing’ force of transparency has been empirically tested in the project ‘Arguing and Bargaining in Multilateral Negotiations’.196 That project examined conferences within numerous international treaty regimes (the Nuclear Non-proliferation Treaty, the Ottawa Treaty Banning Landmines, the Statute of the International Criminal Court (ICC), the Child Labour Convention, and EU negotiations on greenhouse gas emissions). The result of these case studies was that much depends on the subject matter

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deliberation on a three-member committee and tested it using an original dataset on deliberations in the US Federal Reserve Open Market Committee. In 1993 that committee had decided to release transcripts of meetings after a delay of five years. One of the results was that committee members were indeed less likely to switch their position after 1993, i.e. when they knew that their statements and votes would be published (Ellen E. Meade/David Stasavage, ‘Publicity of Debate and the Incentive to Dissent: Evidence from the US Federal Reserve’, The Economic Journal 118 (2008), 695–717). See also James Fearon, ‘Domestic Political Audiences and the Escalation of International Disputes’, American Political Science Review 88 (1994), 577–592. See also Motty Perry/Larry Samuelson, ‘Open versus Closed-door Negotiations’, Journal of Economics 25 (1994), 348–359, which examines the phenomenon with no reference to international negotiations; Tim Groseclose/Nolan McCarty, ‘The Politics of Blame: Bargaining Before an Audience’, American Journal of Political Science 45 (2001), 100–119; John Fingleton/Michael Raith, ‘Career Concerns of Bargainers’, The Journal of Law, Economics, and Organization 21 (2005), 179–203; Prat, ‘Wrong Kind of Transparency’ 2005 (n 154). Elster, ‘Strategic Uses of Argument’ 1995 (n 188), especially 251. See Barbara Koremenos, ‘Open Covenants Clandestinely Arrived at’, International Theory 5 (forthcoming), giving as one example the negotiations on the Statute of the International Criminal Court. Overview and summary of findings in Cornelia Ulbert/Thomas Risse, ‘Deliberately Changing the Discourse: What Does Make Arguing Effective?’, Acta Politica 40 (2005), 351–367.

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and the institutional context of negotiations. For example, with regard to the ICC and child labour, meetings that took place under public scrutiny proved to be quite effective. Negotiators became aware of their ‘social responsibility’.197 In contrast, non-transparent negotiations work better in ‘mixed-motive games’ (when actors have fixed preferences but would also prefer cooperation), for example in European Council summits. Cornelia Ulbert and Thomas Risse conclude that the ‘public sphere’ does have the postulated ‘civilising’ influence on the quality of the debate if two conditions are met: first, the negotiators must be dependent on the subsequent consent or at least approval of their audiences and/or constituencies, for example at the domestic level (as in a ‘two-level arguing process’), or in a transnational public sphere in which negotiators feel the need to justify and legitimize their positions. Second, the members of the audience must be assumed to be neutral at the outset of the process (more like a court), which also means that their preferences are unknown to the negotiators.198 As for the second condition, Thomas Risse hypothesized that once negotiators are certain as to the preferences of the audience whose consent they require, social norms lose their constraining effect because the negotiators need not argue but can simply employ rhetorical devices to impress their audience. If preferences of the principals are known, then ‘secrecy and negotiating behind closed doors might be the only way towards problem-solving, since it enables speakers to argue “out of the box” and to work toward a reasoned consensus without having to fear that some principal in the audience might accuse her of “betraying the national interest.”’199 This proposition was tested on deliberations concerning one item in the EU Treaty revision conference in Amsterdam from 1996 to 1997 (treating the issue of the EU’s single legal personality), but it yielded no clear empirical result. To conclude, depending on the setting and on certain conditions, transparency can have detrimental but also beneficial effects on the quality of international deliberations. Deliberations that are partly open and partly in camera should attempt to exploit the benefits and mitigate the drawbacks of intransparency. For example, any allowance to deliberate behind closed doors might be linked to reproducing the pluralism of the public in private by admitting certain 197 199

Ibid., 358–359. 198 Ibid., 359. Thomas Risse/Mareike Kleine, ‘Deliberation in Negotiations’, Journal of European Public Policy 17 (2010), 708–726, 713.

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stakeholders.200 Another idea is to allow participants to conduct predecisional discussions and deliberations in private so long as the members of the body then publicly cite the reasons for their individual decisions and votes.201 Transparency in deliberations always implies a trade-off.

16.

The Normative Quality of Transparency

This book’s chapters have demonstrated that the (relative) transparency of international processes, mechanisms and institutions, and of the substance of international legal texts, is not just a matter of fact but a social value and yardstick for the way international organizations, regimes and even transnational business actors202 ought to behave. The question is whether that political (or moral) standard of transparency has crystallized into an international legal norm. Are there specific hard or soft legal rules, or is there an overarching international legal prescription for transparency? Within the traditional framework of sources of international law, a legal obligation of transparency can exist only as a treaty-based norm, a customary rule or as a general principle of law. The chapters of this book have adduced a large number of international treaties which prescribe transparency in different relationships and on different issues. A well-known transparency rule applicable in inter-State relations underpins the multiple treaty-based obligations to exchange scientific or technical environment-related information among States.203 In the field of international adjudication, Thore Neumann and Bruno Simma have identified a ‘considerable acquis of hard-law obligations’ and a ‘normative skeleton of an overarching judicial transparency principle.’204 With regard to the Security Council, Antonios Tzanakopoulos (chapter 14) has argued that the Council’s obligation to 200 201

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Chambers, ‘Behind Closed Doors’ 2004 (n 135), 390. Nicholas Johnson, ‘Open Meetings and Closed Minds: Another Road to the Mountaintop’, Drake Law Review 53 (2004), 11–53, 53, concerning US law with respect to agency meetings. Giving reasons provides the meta-transparency discussed below in section 18.3. On the ‘outlines of a social-norm standard for transparency’ of business actors, see Larry Catá Backer, ‘Transparency and Business in International Law: Governance between Norm and Technique’, chapter 18 in this volume. See Jutta Brunne´e/Ellen Hey, ‘Transparency and International Environmental Institutions’, chapter 2 in this volume. Thore Neumann/Bruno Simma, ‘Transparency in International Adjudication’, chapter 17 in this volume.

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be transparent towards the UN member States is an ‘ancillary obligation, which is imposed by the decentralized nature of the system (. . .). [I]f States have the right to control legality of Council action, then they must also have the concomitant (ancillary) right to demand sufficient information on which to reach a conclusion.’ With regard to international investment law, in Chapter 6 Julie Maupin finds that the existence of ‘an overarching norm on transparency remains to be determined.’ In any case, there is no general transparency treaty in the manner of a domestic freedom of information law. Such a treaty would not make much sense anyway because the potential obligees, recipients and objects of transparency are much too complex in the international sphere to be summarily regulated. The obligation of transparency as customary law would require a general practice of transparency accompanied by an opinio iuris. This book has demonstrated that abundant transparency practices exist and that they are expanding. The test question for determining whether this practice is conceived as legally mandated is to entertain whether a rollback is conceivable; if not, then an opinio iuris might be deemed to exist. According to this test, there would seem to be a relevant opinio iuris. Finally, it can be asked whether transparency is ‘a general principle of law’ in the sense of article 38(1) lit. c) ICJ-Statute.205 Such a general principle can be said to exist only if two conditions are met. First, it must be recognized in the municipal laws of States; and second, it must be ‘transposable at the international level.’206 Given the recent proliferation of transparency laws all over the world,207 the first condition would seem to have been satisfied.208 It is not necessary for every single State of the

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207 208

For a good analysis with regard to the Security Council, see Hovell, ‘Deliberative Deficit’ 2009 (n 130). See Alain Pellet, ‘Art. 38’, in Andreas Zimmermann et al. (eds.), The Statute of the International Court of Justice: A Commentary (Oxford University Press, 2nd edn, 2012), MN 250–269, especially MN 254. See the references in n 12. Hovell is more cautious, concluding that ‘it is probably too early to refer to a general principle of international law recognizing a right of access to information. Many of the relevant enactments are too recent in origin to be able to reflect principles that can be said to be integral to any legal system, if certain of those enactments can even be said to have achieved the status of law at all.’ However, she finds that ‘the contemporary trends in legal systems across the globe are striking, and there are clear indications of the gradual evolution of a general principle of international law recognizing a right of access to information’ (Hovell, ‘Deliberative Deficit’ 2009 (n 130), 112–113).

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world to have enacted a formal freedom of information law, especially because the current trend will obviously continue. The more difficult point is that of transparency’s transposability, bearing in mind ‘that conditions in the international field are sometimes very different from what they are in the domestic, and that rules which these latter conditions fully justify may be less capable of vindication if strictly applied when transposed onto the international level.’209 Currently, structural and substantial elements which relate to the operation of a rule of transparency are still quite different at both levels of law (see in detail above section 4). So the condition of transposability has not (yet) been fully met. Additionally, a problem of broadness and vagueness arises. The blurry features of the concept of transparency are apt to undermine its normative power as a legally binding rule. With regard to the principle of good governance, of which transparency forms a part, it has been observed that in order to be ‘legalizable’ a concept ‘must meet two fundamental structural preconditions: it must be sufficiently precise to generate an obligation and to assess its implementation, and it must have an obligor and an obligee. Only if these questions are answered in the affirmative, does it make sense to examine the binding force of the concept.’210 Transparency as such might indeed fail that test: ‘[l]’opacite´ de la transparence est de l’ordre d’illusion; elle pourrait être source de de´sillusions, de de´ceptions. Un droit qui promet trop, qui promet mal, est voue´ à perdre son autorite´, son âme peut-être.’211 This means that its vagueness as such might render the concept of transparency unsuited to function as a legal concept, as a binding rule. As a result, it would seem difficult to argue that transparency is a norm of hard international law – and maybe it can never become one.212 But this finding might be of little relevance. Maybe the classic boxes, the 209

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ICJ, Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (New Application: 1962), Separate Opinion of Judge Sir Gerald Fitzmaurice, Judgment of 5 February 1970, ICJ Reports 1970, 64, 66 (para. 5). See also Pellet, ‘Art. 38’ 2012 (n 206), MN 267. Beate Rudolf, ‘Is “Good Governance” a Norm of International Law?’, in Pierre-Marie Dupuy et al. (eds.), Völkerrecht als Wertordnung, Festschrift für Christian Tomuschat (Kehl: Engel, 2006), 1007–1028, 1026. Christian Atias, ‘La transparence: Exigence politique ou principe de droit’, Revue ge´ne´rale nucle´aire 29 (2003), 58–61, 61. See Jonas Ebbesson, ‘Global or European Only?: International Law on Transparency in Environmental Matters for Members of the Public’, chapter 3 in this volume, who sees merely ‘normative fragments’ which give ‘only limited support for international law on

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‘sources’ in terms of article 38 ICJ-Statute, do not tell us much about the state of international law and its power to influence the behaviour of internationally relevant actors. As Andrea Bianchi has explained, a normative transparency ‘principle’ (in the sense of a ‘connector between the law and changing social realities’) can be discerned213 whatever its doctrinal quality. And maybe as importantly, normative expectations are growing.

17.

A Human Right to Information as a Companion of Transparency

Within States, transparency (rules on open government) has been mainly sought as a question of ‘social hygiene’ in order to achieve greater democratic control and social accountability of governance. Certain authors have also espoused a rights-based perspective in which ‘information rights are most of all an element of citizenship’.214 The debate on international transparency is bifurcated in a similar but not identical way. It derives from both a ‘managerial’ and a ‘rights-based’ tradition, as Megan Donaldson and Benedict Kingsbury point out in chapter 19. In the managerial tradition, transparency is primarily intended to serve the efficacy of governance by using information flows in all directions. From the rights-based perspective, transparency is rather regarded as a tool for protecting the political, social and economic rights of citizens affected by global governance.215 In chapter 9, this perspective is advocated by Jonathan Klaaren, who analyses to what extent a potential human right to information might serve as a ‘vehicle’ for transparency. Such a human right would have as a corollary the duty to disclose.

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transparency vis-à-vis members of the public’. Alan Boyle and Kasey McCall-Smith find ‘remarkably little identifiable international law underpinning this rather significant’ transparency practice of international organizations and treaty bodies (chapter 16 in this volume). Andrea Bianchi, ‘Introduction: On Power and Illusion. The Concept of Transparency in International Law’, chapter 1 in this volume, section 3, in referring to Andreas Lowe’s idea of ‘interstitial norms’. Bovens, ‘Information Rights’ 2002 (n 52), 327. Roberts, Government Secrecy 2006 (n 48), 194. See the Convention No. 205, 2009 (n 17), explanatory report, commentary on the preamble: ‘[T]ransparency of public authorities (. . .) is also essential to (. . .) the exercise of fundamental human rights’.

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A Positive Right to Governmental Information

A right to information is enshrined in many domestic constitutional orders.216 However, this right has been traditionally interpreted as only part of the status negativus. In that reading, the right only prohibits the government from withholding ‘generally accessible’ information (notably information held by entities other than the State). Thus interpreted, freedom of information does not confer on individuals a positive right to obtain information held by the government. In that construction, the human right to information cannot function as a legal basis for claims to access administrative files, court proceedings or records, and it cannot function as a catalyst for the creation of governmental transparency. The international and regional human rights covenants also grant freedom of information.217 According to their wording, everyone shall have the right to ‘receive’ (or to ‘seek and receive’) information – but these provisions do not say who the holder of that information is (private actors, the State, or even intergovernmental organizations?). In earlier individual communications, the United Nations Human Rights Committee218 and the institutions monitoring the ECHR219 had initially interpreted the right to information in the aforementioned ‘liberal’ and limited sense. 216

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For example, in the case of Germany, Basic Law, art. 5(1); for Switzerland, Federal Constitution, art. 16. The United States First Amendment to the Constitution encompasses the right to access information and ideas (US Supreme Court, Richmond Newspapers v. Virginia, Decision of 2 July 1980, 448 US 555 (1980)). See for an overview of the constitutional status of freedom of information Roy Peled/Yoram Rabin, ‘The Constitutional Right to Information’, Columbia Human Rights Law Review 42 (2011), 357–401. UNGA, Universal Declaration of Human Rights, A/RES/217(III)A, 10 December 1948, art. 19; UNGA, International Covenant on Civil and Political Rights, A/RES/2200 (XXI), 16 December 1966 (ICCPR), art. 19(2); European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221, art. 10; American Convention on Human Rights, 21 November 1969, 1144 UNTS 123, art. 13. UN, Human Rights Committee, Communication No. 633/1995, CCPR/C/65/D/633/ 1995, 5 May 1999, paras. 13.3–14. For the narrow interpretation, see ECtHR, Open Door and Dublin Well Woman v. Ireland, Judgment of 29 October 1992, Application No. 14234/88, 14235/88, para. 55. See also ECtHR, Leander v. Sweden, Judgment of 26 March 1987, Application No. 9248/ 81, para. 74; ECtHR, Gaskin v. United Kingdom, Judgment of 7 July 1989, Application No. 10454/83, paras. 51–52. European Commission of Human Rights, X. v. Federal Republic of Germany, Decision of 3 October 1979, Application No. 8383/78, 228–229; European Commission of Human Rights, X. v. United Kingdom, Decision of 14 December 1979, Application No. 8575/79, 203.

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Today that reading is being abandoned in favour of a new and broader construction of the provisions, endorsing a positive human right to basically access all State-held information. It is in this sense that the multi-stakeholder Atlanta Declaration and Plan for Action for the Advancement of the Right of Access to Information states as its ‘key principle’ that ‘[a]ccess to information is a fundamental human right.’220 In Claude Reyes v. Chile, a pioneering judgment of 2006 concerning access to environmental information, the Inter-American Court of Human Rights broadly defined the scope of the right to seek and to receive information under article 13 of the Inter-American Convention on Human Rights as a ‘right of all individuals to request access to stateheld information’, with the consequence that there is a ‘right of the individual to receive such information and the positive obligation of the state to provide it.’221 The European Court on Human Rights has recently scotched its previous narrow reading of article 10 of the ECHR. In 2006 the Court still opined that the right to receive information ‘concerne avant tout l’accès à des sources generales d’information et vise essentiellement à interdire à un Etat d’empêcher quelqu’un de recevoir des informations que d’autres aspirent ou peuvent consentir à lui fournir. (. . .) La Cour observe e´galement qu’il est difficile de de´duire de la Convention un droit ge´ne´ral d’accès aux donne´s et documents de caractère administratif.’222 In 2009 the ECHR recalled that ‘Article 10 does not (. . .) confer on the individual a right of access’ to governmental-held information, and that ‘it is difficult to derive from the Convention a general right of access to administrative data and documents.’ But then came the obiter dictum: ‘[N]evertheless, the Court has recently advanced towards a broader interpretation of the notion of “freedom to receive information” (. . .) and thereby towards the recognition of a right of access to

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‘Atlanta Declaration and Plan for Action for the Advancement of the Right of Access to Information’, 29 February 2008, available at: www.cartercenter.org, adopted, according to the website by ‘over 125 members of the global access to information community from 40 countries, representing governments, civil society organizations, international bodies and financial institutions, donor agencies and foundations, private-sector companies, media outlets and scholars, gathered in Atlanta, Georgia from February 27–29, 2008, under the auspices of the Carter Center’. IACtHR, Case of Claude Reyes et al. v. Chile, Order of 19 September 2006, 2006 Series C No. 151, para. 77. ECtHR, Sdružení Jihočeske´ Matky v. Czech Republic, Decision of 10 July 2006, Application No. 19101/03, 9–10.

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information.’223 In a recent Grand Chamber judgment, the Court in passing assumed a right ‘to receive information in the form of access to the public documents concerned’, protected under article 10 ECHR.224 Most importantly, the UN Human Rights Commission, in its General Comment on the right to freedom of expression and information, issued in 2011, interpreted article 19(2) International Covenant on Civil and Political Rights (CCPR) as embracing ‘a right of access to information held by public bodies.’225 In order to give effect to this right, the Comment further calls upon parties to ‘proactively put in the public domain Government information of public interest.’226 This novel reading is borne out by the wording of article 19(2) CCPR: ‘to seek (. . .) information and ideas of all kinds’. Legal scholarship has furnished arguments for construing the right to information as a positive right that in principle encompasses a right of access to State-held documents. The purely negative reading of the human right to information is inappropriate to the modern information society.227 Normatively speaking, freedom of information should not only be freedom ‘from’ censorship but a freedom ‘to’ (in the sense of Isaiah Berlin).228 The right to access of public documents should be regarded as a human right because of its ‘intrinsic importance’ and because it is ancillary to freedom of speech. What is the point of freedom of speech if that speech is badly informed?229 Given the important democratic function of citizens’ information about government, I submit that a positive but not unlimited right of access to State-held information is adequate in policy terms. It is also fitting under the liberal premise that governmental power is merely a 223

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ECtHR, Társaság a Szabadságjogoke´rt v. Hungary, Judgment of 14 April 2009, Application No. 37374/05, para. 35 (internal references omitted). See also ECtHR, Kenedi v. Hungary, Judgment of 26 May 2009, Application No. 31475/05, paras. 40–43 on access to documents held by the Ministry of the Interior. ECtHR, Gillberg v. Sweden, Grand Chamber Judgment of 3 April 2012, Application No. 41723/06, para. 93. UN, Human Rights Committee, General Comment No. 34, CCPR/C/GC/34, 12 September 2011, para. 18. ICCPR, 1966 (n 217), art. 19 had previously been interpreted by some commentators as providing only access to generally accessible information. See Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commmentary (Kehl: Engel, 2nd edn, 2005), art. 19, para. 18. Ibid., para. 19. Bovens, ‘Information Rights’ 2002 (n 52); Bröhmer, Transparenz als Verfassungsprinzip 2004 (n 25), 225–229. Ackerman/Sandoval-Ballesteros, ‘Global Explosion’ 2006 (n 10), 90. Birkinshaw, Freedom of Information 2010 (n 10), 497–98.

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delegated power; as a US Court of Appeals put it, all information on governmental activity is ‘information rightfully belonging to the people.’230 If information is public property, government is in principle obliged to share it. As early as 1985 the Inter-American Court of Human Rights had stressed the importance of a free flow of information for liberty and democracy by stating that ‘a society that is not well informed is not a society that is truly free.’231 To conclude, the human right to information should be read very broadly and understood as granting access to all State-held information (subject to legitimate restrictions). There are practical consequences to acknowledging a human right of access to public documents – as opposed to endorsing transparency (only) as an ‘objective’ (not rights-based) principle of governance. The difference from the law as it stands would be that access to non-public information could not be summarily rejected as falling outside the scope of the human right to information. A positive human right of access to State-held information would not be overly broad because it would not be unlimited. It would still be possible to refuse access on a legal basis in order to protect legitimate overriding objectives as long as the refusal of disclosure is proportionate to those objectives. With a human rights underpinning, the burden of justification in maintaining secrecy shifts to the information-holder. Proportionality – or in ECHR terminology: ‘necessity in a democratic society’ – would have to be determined by balancing conflicting interests in the concrete case.232 Such a human right must also be taken into account when interpreting laws. While a right to information would be neither a necessary nor sufficient condition for bringing about transparency, it could surely reinforce any trend in this direction. 230

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US Court of Appeals, The Detroit Free Press v. Ashcroft, Decision of 26 August 2002, 303 F 3d 681 (6th Cir. 2002), 683. IACtHR, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights), Advisory Opinion OC-5/85 of 13 November 1985, 1985 Series A No. 5, para. 70. Under US constitutional law, government action that curtails the First Amendment right of access to information ‘in order to inhibit the disclosure of sensitive information’ must be supported by a showing ‘that denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest’ (US Supreme Court, Globe Newspaper Co., 457 US 606–07 (1982)). Moreover, ‘[t]he interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered’ (US Supreme Court, Press–Enterprise II, 478 US 10 (1986)). For constitutionally admissible limitations on the right to information under German constitutional law, see BVerfG, 1 BvR 2623/95 of 24 January 2001, on TV reporting in court.

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Opposable to International Organizations?

In order to function effectively as a vehicle for global transparency, the human right to information must be opposable to actors other than States. For example, it might be usefully claimed so as to counter World Bank decisions to finance ecologically sensitive developmental projects.

International Human Rights in General Such an extension of the obligees of the human right to information would be in line with the overall rationale of human rights. It is the prime function of human rights to protect individuals against public power at whatever level of governance. It is a well-established principle that these rights must be not only theoretical but real and effective.233 It is in line with the purpose of human rights that they be opposable not only against State actors but also against inter-State ones such as international organizations, agencies and conferences. Based upon that teleological consideration, many people demand that international organizations be made addressees of certain international human rights obligations.234 Some authors even argue that these duties of international organizations are already part and parcel of international law as it stands.235 But there are many open questions, for instance, precisely which organizations are covered, which human rights are thus extended, and which types of obligations (to respect, to protect, or to fulfil) would fall to international organizations. Is there a doctrinal explanation for the engagement of international organizations in this way? To begin with, the founding documents of 233 234

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ECtHR, Airey v. UK, Judgment of 9 October 1979, Application No. 6289/73, para. 24. From a philosophical perspective, see Cristina Lafont, ‘Accountability and Global Governance: Challenging the State-centric Conception of Human Rights’, Ethics and Global Politics 3 (2010), 193–215. For the international financial institutions, see Sigrun I. Skogly, The Human Rights Obligations of the World Bank and the International Monetary Fund (London: Cavendish, 2001); Mac Darrow, Between Light and Shadow: The World Bank, the International Monetary Fund and International Human Rights Law (Oxford: Hart, 2003); for the WTO, see Holger Hestermeyer, The WTO and Human Rights: The Case of Patents and Access to Medicine (Oxford University Press, 2007); for the United Nations, see Anne Peters, ‘Art. 25’, in Bruno Simma et al. (eds.), A Commentary to the Charter of the United Nations (Oxford University Press, 2nd edn, 2012), MN 109–123; and for all international organizations, see Anne Peters, ‘The Constitutionalisation of International Organisations’, in Neil Walker/Jo Shaw/Stephen Tierney (eds.), Europe’s Constitutional Mosaic (Oxford: Hart, 2011), 253–285, 266–269.

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international organizations must be interpreted and applied in conformity with the human rights obligations of their member States. This follows from the principle of interpretation laid down in article 31(3) lit c) of the Vienna Convention on the Law of Treaties (VCLT), which demands that the ‘relevant rules of international law applicable in the relations between the parties’ must be ‘taken into account’. The human rights obligations which all members have incurred are ‘relevant’ and ‘applicable’ international rules and must hence be ‘taken into account’ when interpreting the founding treaties, for example the WTO Agreement or the Statute of the World Bank. Second, any interpretation of those founding documents should complement the basic legal principle that the member States are not allowed to forgo their human rights obligations by transferring competencies to an international organization and that the member States’ responsibility continues after any such transfer (‘no flight into an international organisation’).236 In order to prevent the obnoxious effects of ‘up-zoning’ public functions to the international level, the member States should retain some residual responsibility. But this does not prevent lacunae if the organizations themselves are not also engaged. To conclude, the systemic interpretation of the founding documents of international organizations mandates that the organizations take into account the human rights obligations of their member States. This can be understood as a weak type of obligation, comparable to the obligation to protect. Independent of treaty provisions, international organizations might be fully bound by those human rights which have passed into general international law.237 However, although numerous human rights have indeed acquired the status of customary law, it is not clear whether their ‘direction’ has also changed. The ordinary addressees of obligations flowing from those customary human rights are States. In order to also address the organizations as an obligee or duty-holder, it is not the substance but the structure which would have to evolve so that the relevant obligations were extended to the organizations (besides States). It is doubtful whether such a normative evolution can be 236

237

See ECtHR, Matthews v. UK, Judgment of 18 February 1999, Application No. 24833/94, para. 32, with regard to ECHR-member States’ ‘flight’ from obligations under the ECHR. For the UN, see Iain Cameron, ‘The European Convention on Human Rights, Due Process, and the United Nations Security Council Counter-terrorism Sanctions’, Report commissioned by the Council of Europe (2006), 21.

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presumed in the absence of indications to the contrary.238 It rather seems that the change of ‘direction’ would have to be based on a practice and opinio iuris.

The Right to Information The ‘positive’ right to information – the right of access to documents – is effective only when it covers all information which is potentially important for the life of individuals. This includes information concerning the legal position of individuals, policy information, and information that can assist them in bolstering their socio-economic position.239 Due to international organizations’ relative gain in competencies and power, these types of information are increasingly being held not only by States but also by international organizations. So as not to diminish the value and function of the human right to information, it must be extended to the new information-holders. The Human Rights Committee’s General Comment on article 19 CCPR is along these lines. The Comment gives a functional as opposed to a formalist account of the obligees of that right: ‘Article 19, paragraph 2 embraces a right of access to information held by public bodies (. . .) [and] may also include other entities when such entities are carrying out public functions.’240 The Comment also points out that the right of access to information is opposable to ‘semi-State entities’.241 The soft multi-stakeholder law ‘Atlanta Declaration’ of 2008 explicitly seeks to bind international organizations to the right to information with a view to furthering transparency: ‘[t]he right of access to information applies to all intergovernmental organizations, including the United Nations, international financial institutions, regional development banks, and bilateral and multilateral bodies. These public institutions should lead by example and support others’ efforts to build a culture of transparency.’242 238

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See in that sense Holger Hestermeyer who argues that the WTO is bound by human rights law because WTO law does not stand in contradiction to that and the WTO has not implicitly contracted out (Hestermeyer, The WTO and Human Rights 2007 (n 235), 99–102. Schermers/Blokker, International Institutional Law 2011 (n 56), 1004–1005 discuss not human rights, but customary norms in general: ‘in principle’, international organizations are bound by international customary law unless the rule in question is not ‘suitable to be applied’ to international organizations. Bovens, ‘Information Rights’ 2002 (n 52). HRC, General Comment No. 34, 2011 (n 225), para. 18 (emphasis added). Ibid., paras. 7 and 18. ‘Atlanta Declaration’ 2008 (n 220), principle 3, see also principle 4b). The Atlanta Plan of Action states: ‘1. Intergovernmental organizations – including the United Nations

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17.3

Opposable to Business Actors?

A different question is whether the international human right to information is opposable to multinational corporations.243 In my view, the ‘Guiding Principles on Business and Human Rights’ – as elaborated by the UN special representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises – correctly rejects any direct applicability of international human rights to business actors but postulates the business world’s moral ‘responsibility to respect human rights’.244 With a view to our question as to whether transparency is a global standard that is relevant for those actors, the special rapporteur’s principles as endorsed by the UN Human Rights Council245 and incorporated into the OECD Guidelines for Multinational Enterprises246 offer a useful framework: business enterprises have a responsibility to avoid causing an adverse human rights impact through not only their actions but their omissions, too.247 Therefore, in the spirit of article 19 CCPR, they must strive to grant the general public reasonable access to information about products and employment conditions. Parallel to this, States have the ‘duty to protect’ against human rights abuses within their jurisdiction. With regard to the human right of freedom of information, this means that governmental policies, legislation and regulations must strike a balance

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and all of its bodies, Council of Europe, Organization of American States, African Union, the Organization for Economic Cooperation and Development and international financial institutes, regional development banks, and trade bodies – and international and domestic non-governmental organizations should give effect to the right of access to information in accordance with the findings and principles enumerated above’. See also de lege ferenda: Stiglitz, ‘Democratizing the International Monetary Fund’ 2003 (n 123), 111–139, 133: ‘[T]he IMF, no less than democratic governments, should be subjected to Freedom of Information acts’. Roy Peled, ‘Occupy Information: The Case for Freedom of Corporate Information’, Hastings Business Law Journal 9 (2013), 261–301. UN, Human Rights Council, Report of the Special Representative of the SecretaryGeneral on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises; John Ruggie: Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect, and Remedy’ Framework, A/HRC/ 17/31, 21 March 2011. UN, Human Rights Council, Human Rights and Transnational Corporations and Other Business Enterprises, A/HRC/RES/17/4, 6 July 2011. OECD, OECD Guidelines for Multinational Enterprises (Paris: OECD, 2011), principle IV. UN, Guiding Principles on Business and Human Rights (New York/Geneva: United Nations, 2011), principle 13 and commentary.

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between legitimate requests for access and respect for business secrets, and that States must also enforce transparency requirements.

18.

Policy Recommendations

Because the effects of different transparency measures are still uncertain, policy recommendations can only be quite general.

18.1

Qualifying Transparency

De lege ferenda, international law and institutions should be rendered more transparent, i.e. the current trend should be basically continued and reinforced. However, because of the mixed effects of transparency, any move in this direction must be qualified. The question is not so much whether transparency should be created but rather how much and when? Total transparency of international law is neither appropriate nor realistic. Law- and policy-makers should treat transparency as a variable of institutional and legal design. They need to balance the potential negative effects against the positive ones. Further, a mix of transparent and intransparent elements in institutions, and of transparent and intransparent phases in decision-making and law-making, must be sought. With regard to the World Bank, Philipp Dann speaks of the ‘dialectic’ of transparency and intransparency as a precondition for the effectiveness of international administration.248 So the bottom line is that we need as much transparency as required, but as little as necessary. And how much is that? So far, no clear method has been established to compare and evaluate the costs and benefits of transparency and to allocate the ‘right’ measure of it. In any case this measure would be sector-specific, for a proper transparency framework must be tailored to specific situations: ‘[T]here can be no single “how-to” primer on making the best use of what transparency tools can offer for governance.’249 A catch-all transparency design is also unwarranted because institutions and the zeitgeist (social expectations and attitudes about what is proper and due) may evolve, and along with them the optimal level of transparency for the international organizations and procedures. David Stasavage gives the EU as an example: ‘[R]ather than deciding whether practices such as the club model of multilateral 248 249

Dann, ‘Recht der Weltbank’ 2011 (n 91), 320. Florini, ‘Conclusions’ 2007 (n 77), 337.

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cooperation are optimal in an absolute sense, it may be more accurate to suggest that these secretive forms of international cooperation were desirable at one time, but that they are suboptimal today, in an era where an increasing number of citizens perceive a bias on the part of their representatives.’250 Finally, transparency mechanisms need to be accompanied by other measures such as participation rights in order not to remain an ersatz policy as discussed above.

18.2

A Presumption of Transparency

The need for qualifications of transparency can be translated into a legal presumption. Importantly, a (legal) presumption of transparency should be acknowledged.251 The Preamble of the Council of Europe Convention on Access to Official Documents (No. 205) of 2009252 expresses such a presumption with regard to documents held by States: ‘[c]onsidering, therefore, that all official documents are in principle public’. Against the background of transparency practices and the assumed opinio iuris, such a presumption arguably already exists as a matter of international law, and not only with regard to States but as regards international organizations. For the sake of legal clarity and certainty, this presumption should also be codified in the constitutions of international organizations or in rules of procedure.253 A presumption of transparency means that the non-release of documents and the closure of meetings to the public must be specifically justified on the basis of legal exceptions which have been clearly defined 250 251

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Stasavage, ‘Open-Door or Closed-Door?’ 2004 (n 190), 696. See Gutmann/Thompson, Democracy and Disagreement 1996 (n 54), 96, explaining the basis ‘for a presumption in favor of publicity and the authority of claims of secrecy and other values that could rebut the presumption’; Stiglitz, ‘On Liberty’ 1999 (n 44), 152: ‘[B]ecause of these limitations of legalistic approaches, emphasis must be placed on creating a culture of openness, where the presumption is that the public should know about and participate in all collective decisions’. Buchanan/Keohane, ‘Global Governance Institutions’ 2006 (n 69), 431: ‘[T]here should be a very strong but rebuttable presumption of transparency’. Orna Ben-Naftali/Roy Peled, ‘How Much Secrecy Does Warfare Need?’, chapter 13 in this volume, argue that ‘the presumption in favour of secrecy during wartime should be reversed, requiring government officials to shoulder the burden of proof to justify why secrecy is necessary in any particular matter’. Convention No. 205, 2009 (n 17). Such as in the ‘Note of Interpretation’ of the NAFTA Free Trade Commission of 31 July 2001, which makes transparency the ‘default norm’ in all investor–state complaints brought under NAFTA, chapter 11. See Julie Maupin, ‘Transparency in International Investment Law: The Good, the Bad and the Murky’, chapter 6 in this volume.

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and circumscribed prior to the fact. These exceptions can only be granted by stating the reasons for them publicly; the burden of explaining and of proving the need for secrecy is thereby placed on the institution itself – not on those outsiders who request access. A legal presumption of transparency furthermore generates the obligation to keep the degree of intransparency as low as possible. Institutions must always choose the most transparent alternative to safeguard those objectives that conflict with transparency (protection of deliberations, space constraints, etc.). For example, instead of completely closing a meeting or conference, they must allow a limited number of observers. With regard to the timing of transparency, a less opaque alternative would be to delay the publication of documents rather than prohibiting publication altogether. But it must be kept in mind that information given ex ante can have a completely different value from the one given only ex post. For example, the publication of deliberations after a treaty text has been adopted by the State representatives is useless with a view to influencing the text itself. Still, any subsequent publication of those deliberations can impact on a parliament’s decision to ratify the treaty by better explaining which considerations and factors have in fact led to the text’s particular composition. The presumption of transparency of those holding public power (including international organizations) and the protection of a sphere of privacy and secrecy for citoyens254 and bourgeois are two phenomena that do not in fact stand in contradiction to one another but are rather complementary since the non-governmental sphere includes business actors who are not subject to the principle of presumptive transparency. Global transparency remains committed to a principled public–private divide.

18.3

Meta-transparency

Intransparency is rendered the more acceptable the more it is embedded in what Thore Neumann and Bruno Simma (chapter 19) have called

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For example by protecting the secrecy of political votes. See Hubertus Buchstein, Öffentliche und geheime Stimmabgabe: Eine ideengeschichtliche und wahlrechtshistorische Studie (Baden-Baden: Nomos, 2000).

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‘meta-transparency’. Meta-transparency or ‘second order’ transparency255 means that the reasons for the intransparency (i.e. whether it is necessary at all) and its substantive and temporal scope must be made transparent. In other words, the questions as to whether, how much and for how long intransparency is warranted (e.g. the need for a closed-door debate, the circumscription of exceptions, possible reform of the policy) must be subject to public debate,256 and it is thereby that an ‘element of public accountability for the secrecy itself’ is introduced.257 In practice this means that in the administrative sphere the authority’s decision to refuse disclosure of a document must (besides striking a fair balance between the conflicting interests) give reasons.258 In other words, the (international) bureaucracy’s decision to remain intransparent must itself be transparent in order that it be regarded as legitimate. Second, in any dispute settlement, meta-transparency means that even proceedings closed to the general public for security reasons should end at least in a public judgement or award, which is then justified in a transparent fashion.259 Third, general rules (e.g. in treaties) which restrict transparency in any issue (for example that of international security) should be transparent in two respects: they should be elaborated in an appropriate combination of closed and public deliberation, and they should be duly published in accessible media.260

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Gutmann/Thompson, Democracy and Disagreement 1996 (n 54), 105, use the term ‘second-order publicity’. Stiglitz, ‘On Liberty’ 1999 (n 44), 152. Gutmann/Thompson, Democracy and Disagreement 1996 (n 54), 104. In this sense, see EU Transparency Regulation, 2001 (n 61), art. 9(4): ‘[A]n institution which decides to refuse access to a sensitive document shall give the reasons for its decision in a manner which does not harm the interests protected in Article 4’. Cf. Council of Europe, Parliamentary Resolution 1551 (2007), 19 April 2007, para. 10.6. With regard to domestic laws, the Council of Europe’s Parliamentary Assembly stated that ‘legislation on official secrecy (. . .) must be clear and, above all, public’. Council of Europe, Parliamentary Assembly, Fair Trial Issues in Criminal Cases Concerning Espionage or Divulging State Secrets, Resolution 1551, 19 April 2007, para. 10.2. In a parallel fashion, the EU Transparency Regulation imposes procedural obligations on the EU member States for the treatment of sensitive documents, notably the obligation to make public the rules of the institution concerning sensitive documents (EU Transparency Regulation, 2001 (n 61), art. 9(6)). Similarly, the Council of Europe’s comparative study of legislation on state secrets in the CoE member States stressed that ‘any administrative or ministerial decrees giving content to more generally worded statutes must at the very least be publicly accessible’ (Council of Europe Rapporteur Christos Pourgourides, CoE Doc. 11031, 25 September 2006, para. 68).

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This approach to transparency has consequences for ‘deep secrets’, whose very existence is hidden from outsiders.261 The classic example for keeping a deep secret is the American courts’ acceptance of the ‘Glomar Response’,262 which was used by the CIA in a case concerning a sunken Russian submarine.263 Here the CIA refused to confirm or deny the existence of any records or documents pertaining to their presumed venture to recover the submarine. In Chapter 6, Julie Maupin gives examples of deep secrets in the international investment-law regime. Meta-transparency means that deep secrets – issues that the public does not realize it does not know – should be avoided. In the end, only metatransparency provides the necessary means for transcending the limits of transparency.264

19. 19.1

Conclusions

Global Transparency

This book has sought to analyze the legal status, the functions, potential, legal limits, and legal problems related to transparency in all fields of international law. At the same time, the objective was to place transparency on the agenda of international law research. Due to the complexity of the subject, hardly any ready results can be presented. One thing is clear, however: there is a trend towards more transparency in international governance, as a matter of practice and principle. But only in some areas, this principle has attained the status of hard law. The human right to information is likely to work as a vehicle for increasing transparency, especially if it is understood to be opposable also to international organizations. Arguably, globalization has rendered more acute the need for transparency at the various levels of governance. There is nothing intrinsic in the international legal system which would prevent an application of 261

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Gutmann/Thompson, Democracy and Disagreement 1996 (n 54), 121. In contrast, a secret is ‘shallow’ when outsiders know that a piece of information is secret but do not know what the information is. They have at least the opportunity to challenge the keepers of shallow secrets and ultimately decide whether the secret should be kept (ibid.). See Danae J. Aitchison, ‘Reining in the Glomar Response’, University of California Davis Law Review 27 (1993), 219–254. US Court of Appeals, Military Audit Project v. Casey, Decision of 4 May 1981, 656 F 2d 724 (DC Cir. 1981), 729–730. See Gutmann/Thompson, Democracy and Disagreement 1996 (n 54), 127, on publicity.

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transparency requirements to that field of law. Within international organizations and courts and tribunals, transparency partly seems to fulfil similar tasks as in the domestic realm, for example as a power shifter, or as a safeguard of judicial independence. But transparency norms can also (for the better or worse) fulfil particular functions peculiar to the international sphere of governance, notably as a kind of ersatz legitimacy. The two phenomena in their combination (national and international transparency) constitute a form of multilevel transparency which is not simply the result of adding national and international transparency but which in itself has a new quality – the quality of global transparency. The effects of transparency are ambivalent, both ‘good’ (e.g. by increasing accountability) and ‘bad’ (e.g. by disturbing diplomatic negotiations).265 Law- and policy-makers must therefore balance potential negative effects against expected positive ones and provide for the proper amount of transparency as well as its timely use as adapted to the field of international law, the institutional setting, and the observers at hand. The question is not whether international law should be transparent but to what extent, and what form this should take. Especially with a view to enabling and improving deliberation, public and non-public phases must be mixed, and the design of such deliberation exceptions to general transparency requirements should build on empirical findings on the effects of transparency on the quality of international deliberations. As a general matter, the policy recommendation is that any transparency norm must be qualified, with due exceptions, but starting from a presumption of transparency under which the closure of meetings, the classification of documents, etc. need a specific justification. Also, the exceptions to transparency must be embedded in meta-transparency under which the reasons for intransparency must themselves be made transparent.

19.2

Towards a ‘Public’ International Law

Ultimately the rise of transparency might manifest a paradigm shift, namely international law’s shift from a ‘private’ to a ‘public’ character. There are two different issues implied in this. The first relates to the fact 265

As a matter of conceptualization, this ambivalence suggests a need to qualify transparency as an independent principle, and not only as part of a broader principle of global democracy.

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that traditional international law (being mainly inter-State law) has long been conceived as ‘private law writ large’.266 Hersch Lauterpacht famously stated that ‘formally, international public law belongs to the genus private law’.267 The background to this qualification is the traditional distinction between public and private law. But this distinction has been drawn on the basis of different criteria. Public law can be that body of law which is binding on the governing authorities, the law that constitutes and constrains political power (Herrschaft),268 or that body of law which seeks to reconcile claims of individual autonomy with the existence of a regime of public authority,269 or that body of law intended to serve the general welfare (the common good, the ‘public’ interest) − as opposed to private law which typically seeks to further private autonomy. ‘Public’ law can be all of these things – but not always. Despite this epistemic blurriness, despite the historical and geographic contingency of the categories of ‘public’ and ‘private law’,270 and despite the pitfalls of the domestic analogy,271 I submit that the public–law/ private-law distinction also has an analytic and normative value for international law because that distinction reflects the difference between iustitia distributiva (to be realized through distributive policies) and 266

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269

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Thomas Holland, Studies in International Law (Oxford: Clarendon Press, 1898), 152. Montesquieu described international law as ‘le droit civil de l’univers dans le sens que chaque peuple est un citoyen’ (Charles de Secondat Montesqieu, De l’esprit des lois (Ge´nève: Barrilot & Fils, 1748), livre vingt-sixième: Des lois dans le rapport qu’elles doivent avoir avec l’ordre des choses sur lesquelles elles statuent; chapitre premier – ide´e de ce livre). Hersch Lauterpacht, Private Law Sources and Analogies in International Law (London: Longmans, Green and Co, 1927), 81. Loughlin, Foundations 2010 (n 26), 1; Dieter Grimm, Das öffentliche Recht vor der Frage nach seiner Identität (Tübingen: Mohr Siebeck, 2012), 72: Public law is described here as the ‘Dach aller herrschaftsbezogenen Rechtsmaterien’ (‘roof of all law related to political authority’). Loughlin, Foundations 2010 (n 26), 10–11; Armin von Bogdandy et al. (eds.), The Exercise of Public Authority by International Institutions. Advancing International Institutional Law (Heidelberg: Springer, 2010), 5. On the contingency of the public-law/private-law distinction, see the seminal work of Martin Bullinger, Öffentliches Recht und Privatrecht (Stuttgart: Kohlhammer, 1968). On the reception (or rather re-invention) of the ancient Roman distinction between ius publicum and ius privatum, see Michael Stolleis, ‘Öffentliches Recht und Privatrecht im Prozess der Entstehung des modernen Staates’, in Wolfgang Hoffmann-Riehm/ Eberhardt Schmidt-Aßmann (eds.), Öffentliches Recht und Privatrecht als wechselseitige Auffangordnung (Baden-Baden: Nomos, 1996), 41–61, 45–51. It has been claimed that international law is neither public nor private but ‘simply “international”’ (Alain Pellet, ‘Can a State Commit a Crime? Definitely, Yes!’, European Journal of International Law 10 (1999), 425–434, 433).

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iustitia compensativa (as realized in the private sphere and through the market).272 The emerging transparency norm within international law – with its quality as an enabler and to some extent proxy for accountability, participation, and global democracy – is currently strengthening this element of global distributive justice in international law. International law has in that sense been rendered more like ‘public’ law. In yet another sense, transparency is both the driver and the manifestation of a paradigm shift to ‘public’ international law. Transparency seems indispensable to international practices and rules, because the element of transparency supports the qualification of these rules and practices as law in the modern sense. The creation of transparency with regard to those rules is thus apt to fend off resurgent claims that there is no such thing as international law. Lon Fuller has identified various elements as necessary (defining) attributes of law: publicity, nonretroactivity, comprehensibility, no internal contradictions, constancy through time (no frequent changes), and congruence between declared rules and official action.273 All of these could also be subsumed under the heading of ‘publicness’ or for that matter ‘transparency’. For Jeremy Waldron, the ‘public character of law’ lies in ‘the fact that law presents itself not just as a set of commands by the powerful and not just as a set of rules recognized among an elite, but as a set of norms made publicly and issued in the name of the public, norms that ordinary people can in some sense appropriate as their own, qua members of the public.’274 That notion of ‘public’ has little to do with the public-law/private-law divide, instead referring to all law. ‘Public’ here connotes a diluted democratic quality: law can be ‘public’ in that sense even if it has not been created through formally democratic procedures – that is, even if it has not been made ‘by’ the people but only ‘publicly’; when ‘ordinary people’ can appropriate it and consider it ‘as their own’ even if they have not voted for it. Based on this understanding of ‘public’, Benedict Kingsbury and Megan Donaldson have suggested reconceptualizing international law as an inter-public law which contains basic ‘public law’ principles that include legality, rationality, proportionality, rule of law and fundamental rights ‘as well as (. . .) an additional quality of “publicness” inherent in 272

273 274

See Nils Jansen/Ralf Michaels, ‘Private Law and the State’, RabelsZ 71 (2007), 345–397, reprinted in Nils Jansen/Ralf Michaels (eds.), Beyond the State: Rethinking Private Law (Tübingen: Mohr Siebeck, 2008), 15–67, 62. Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1963), 33–41. Jeremy Waldron, ‘Can There Be a Democratic Jurisprudence?’, Emory Law Journal 58 (2009), 675–712, 684 (emphasis partly added).

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law’.275 ‘Publicness’ is ‘the claim of law to stand in the name of the whole society and to speak to that whole society’.276 A pertinent concept – relying on ‘publicity’ rather than ‘transparency’ – is that of ‘public reason’ as used in philosophical theories of deliberative democracy.277 These theories normally involve a claim about the salutary effects of going public with reasons and arguments.278 Their assumption is that having to defend one’s policy preferences in public predisposes one towards using public reason.279 According to Simone Chambers, public reason involves justification and accountability directed at a public characterized by pluralism. Public reasons (in the plural) are reasons that the public at large could accept.280 Publicity (and for that matter, transparency) ‘is thought to have a positive effect on deliberation by promoting a democratic mechanism that pushes participants from private to public reason.’281 Parallel to all this, one strand of political-science and internationalrelations research has undergone a ‘deliberative turn’. It claims that arguing – i.e. communicative behaviour on the basis of evolving preferences, in which arguments are given and which seeks to reach a reasoned consensus – is not only an epiphenomenon of power and interest but is constitutive of international relations in its own right.282 In this literature, arguing (as just defined) is contrasted with bargaining (understood as communicative behaviour on the basis of fixed preferences in which demands, threats and promises are exchanged). The gist is that arguing can be distinguished from bargaining through its triadic 275

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278 279 282

Benedict Kingsbury/Megan Donaldson, ‘From Bilateralism to Publicness in International Law’, in Ulrich Fastenrath et al. (eds.), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (Oxford University Press, 2011), 79–89, 80 and 83, emphasis added. Inter-public law is not only a series of interactions between states as rational actors but independent of any consensus on a priori principles or morality; ‘[r]ather, it is the existence of law that both creates a certain kind of society in its own right, through the practice of seeking law-governed relationships, and allows other communities – or publics – to come into being and assert their interests, by making available certain institutional mechanisms to satisfy public law principles of rationality and rule of law, and by creating rhetorical possibilities for demands that the law respond to the felt needs of a particular public’ (ibid., 84). Benedict Kingsbury, ‘International Law as Inter-public Law’, in Henry S. Richardson/ Melissa S. Williams (eds.), Nomos XLIX: Moral Universalism and Pluralism (New York University Press, 2008), 167–204, 174. John Rawls, Political Liberalism (New York: Columbia University Press, 2005), Lecture VI: The Idea of Public Reason, 212–254. Chambers, ‘Behind Closed Doors’ 2004 (n 135), 390, calls this a ‘publicity principle’. Ibid. 280 Ibid. 281 Ibid., 392. Seminally Thomas Risse, ‘Let’s Argue!’, International Organization 54 (2000), 1–39.

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nature.283 Arguing involves reference to a mutually accepted external authority so as to validate empirical or normative assertions; and that external authority might be an audience which serves as adjudicator of the better argument; and that audience might be the public observing the negotiations. It is within this paradigm that transparency would appear to be an indispensable element of global governance. The increasing transparency of international law is in line with the aspirations of these strands of legal, philosophical and IR research. It renders the law-making process more ‘public’, it makes visible the claim to speak to the entire global society, and it allows natural persons to ‘appropriate’ it. Transparency is a necessary enabling condition for ‘public’ discourse on a potential global ‘public interest’.284 The reason is that in our pluralistic world marked by deep moral disagreement a substantive global public interest can be neither plausibly conceptualized nor identified. We therefore need a legal system which helps in creating and sustaining a ‘public sphere’ where ‘public values’ are lived, debated and updated.285 Ultimately, with the structural change towards presumptive transparency, international law is becoming ‘public’ law in all those senses mentioned above: a law which constrains political authority, which seeks to reconcile global political authority with individual autonomy, which is in the global public interest (‘for’ the public), and which is made under scrutiny of the public (‘through’ the public) even if not fully made ‘by’ a global public. The new transparency is one of numerous new public-lawlike features emerging in the international legal order and which are contributing to that order’s ongoing publification. And this publification is very welcome in that it creates a normativite´ renforce´e of that order.

19.3

Agenda for Future Research

While this book attempts to map the terrain of transparency in international law, it has shown that the concept of transparency has many different aspects and functions whose implications for international

283 284

285

Ulbert/Risse, ‘Changing the Discourse’ 2005 (n 196), 352–353. On the problem of conceptualizing and identifying a ‘global public interest’, see Jost Delbrück (ed.), New Trends in International Lawmaking – International ‘Legislation’ in the Public Interest (Berlin: Duncker & Humblot, 1997); Simone Peter, Public Interest and Common Good in International Law (Basel: Helbing und Lichtenhahn, 2012). Kingsbury, ‘Inter-public Law’ 2008 (n 276), 192.

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law could only tentatively be explored. The concluding chapter has touched upon a host of conceptual and normative issues that relate to different aspects of transparency but has not drawn (and possibly could not draw) a coherent picture. Further research is warranted both in a conceptual and in an empirical vein. We have seen that transparency inevitably mirrors its broader political, economic and legal context; but while being shaped by its context, transparency also has the potential to shape it in turn. A key analytical challenge is to identify the conditions under which transparency can indeed unfold any ‘transformative potential’.286 Empirically, it is not clear whether and under what conditions transparency actually issues in better international law-making, in better application and enforcement of the law, and in generally better outcomes.287 We also need to further investigate under what circumstances public speech (arguing or bargaining) has positive or negative governance effects.288 How should closed and open phases of international law-making be combined − and on the basis of which criteria? In order to determine this, a method of comparing and evaluating the costs and benefits of transparency so as to allocate the ‘right’ modicum of transparency would first have to be developed. However, because of the difficulty, maybe impossibility, of a sensible quantification of the ‘costs’ and ‘benefits’ of transparency, such a political-economy approach might not yield useful results. Further, it is basically an open question as to how effective the existing transparency requirements have been (in terms of compliance and impact). Do they normally realize their objectives, or are they irrelevant or even counterproductive (notably because of evasion)?289 It is plausible that the impacts vary across broad issue areas (military, environmental, trade, etc.), and/or between national and international governance. This type of research would face serious challenges because ‘natural 286

287

288 289

Aarti Gupta, ‘Transparency as Contested Political Terrain: Who Knows What about the Global GMO Trade and Why Does it Matter?’, Global Environmental Politics 10 (2010), 32–52, 48–49. For example, Cosette Creamer and Beth Simmons (chapter 10 in this volume) found no evidence of a positive correlation between the mere existence of transparency in the realm of human rights (indicated by the existence of a national human rights institution) and an improvement in human rights. Building on the research mentioned in nn 195–199. For example, the entry into force of the American ‘Government in the Sunshine’ Act seems to have resulted in a decrease in the number of official meetings, which suggests that decision-makers have met informally in private instead (Johnson, ‘Open Meetings and Closed Minds’ 2004 (n 201), 25 fn. 47).

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experiment’-type situations are difficult to find. Moreover, large-scale studies cannot take political, social and institutional nuances into account. Therefore, quantitative studies would need to be complemented by qualitative accounts by diplomat officials of international organizations and NGO representatives. The real impact of transparency norms might ultimately not be identifiable because of venueshifting. Researchers could first look at empirical work done on domestic institutions to identify methodologies fit for transposition to international level-research. To be welcomed here are creative proposals regarding institutions which decide and monitor transparency obligations, and settle disputes over disclosure. These would also have to examine how well the novel adjudicative mechanisms established to deal with access to information claims against international organizations function in practice. Finally, legal research might investigate how the domestic freedom of information laws are being used to access information about positions taken by governments in international organizations, or in proceedings before international courts and tribunals.290 Engaged legal scholars should be aware of possible political implications and uses of the object of their study. Engaged scholarship must admit that transparency of governance is only a necessary and not a sufficient condition for bringing about participation, accountability and possibly democracy in the global sphere. As Ann Florini has pointed out, ‘transparency by itself will accomplish nothing at all.’291 It would be naïve to assume that information, once set free, will generate an informed and engaged public that will hold officials accountable.292 Information must not only be made available, but be taken up and interpreted and used for political reaction. All this requires not only capacities (ranging from sufficient literacy to technical knowledge) but also a willingness on the side of the recipients of information, as well as the means to overcome obstacles such as countervailing economic interests. There is no automatic progress from global transparency to protodemocratic forms of self-determination of a global citizenry. Therefore,

290 291

292

This is an idea by Megan Donaldson. Florini, Coming Democracy 2003 (n 121), 38. See also Hale, ‘Transparency, Accountability and Global Governance’ 2008 (n 8), 74–76 on the ‘transparency-action cycle’. Mark Fenster, ‘The Opacity of Transparency’, Iowa Law Review 91 (2006), 885–949, 915.

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and because of the costs associated with generating more transparency, the idea should not be oversold – it is no ‘magic bullet’.293 Where, when, and how a transparency principle, possibly as a legal norm, can and should come to bear in international law and global governance deserves further research. 293

Lord, Global Transparency 2006 (n 76), 125.

INDEX

Aarhus Convention 1998 access to information, 59–61 access to justice, 63–64 active application, 47–48 administration, 55 compliance review, 70 as driver for transparency, 55 ECHR in relation to, 64–67, 72 NGOs in relation to, 507 other transparency regimes in parallel, 69–70 public participation in decisionmaking, 61–63 review of regional transparency frameworks, 73 transparency provisions generally, 56–58, 429–430, 507, 514–515 UNEP Guidelines 2010 in relation to, 68–69 access to information see information access access to justice Aarhus Convention, 63–64 accountability NGOs in relation to, 567–568 transparency in relation to, 566–568 adjudication see international adjudication Africa perspective on right to information, 228–234 Anti-counterfeiting Trade Agreement (ACTA) negotiations transparency within, 205–207 Apple Inc. supply chain management transparency, 494–498

armed conflict see warfare audio-visual media access to oral proceedings, 453–457 beneficiaries of transparency international law and governance in relation to, 553–554 biopiracy transparency issues as to patents, 218–219 British Petroleum transparency and environmental impacts, 492–494 business law case studies in transparency Apple Inc. and supply chain management transparency, 494–498 British Petroleum and environmental impacts, 492–494 introduction to, 492 issues summarized, 500–501 right to information in relation to, 594–595 soft law and transparency external corporate governance regimes, 488–490 generally, 482 hybrid public–private initiatives, 485–488 internal corporate governance frameworks, 490–492 OECD governance structures, 483–485 and transparency generally, 477–482

608

index transparency in international law in relation to, 498–500 civil society organizations see nongovernmental organizations (NGOs) cluster munitions NGO monitoring, 401 conceptual aspect of transparency overview, 6–10 confidentiality effectiveness as communication strategy, 312–314 in management of public information, 302–304 as organizational principle, 551, 562 of proceedings, 123–127 transparency in balance, 412–414 see also secrecy Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters see Aarhus Convention 1998 corporate governance see business law corporate social responsibility (CSR) Apple Inc. case study, 494–498 BP case study, 492–494 NGOs in relation to, 489–490 court proceedings see international adjudication cultural aspect of transparency overview, 1–3 deliberation international adjudication protection of secrecy, 461–462 scope of secrecy, 457–461 openness in relation to, 30–37 transparency in relation to balancing, 579–580 diplomacy and transparency, 574–575 generally, 574 negative effects of transparency, 575–578

609

positive effects of transparency, 578–579 research findings as to, 580–583 democracy and transparency international law and governance in relation to, 562–566 diplomacy by ICRC see International Committee of the Red Cross (ICRC) disarmament and non-proliferation ambiguity impairing transparency, 403–404 confidence-building measures, 396–397 data collection as transparency tool, 395 declarations, 399–400 Iran’s nuclear programme, 409–411 issues summarized, 415–416 national implementation as transparency tool, 411–412 nuclear weapons register, 397–398 on-site inspections, 406–407 registers, 397–398 remote monitoring, 404–406 Security Council and disarmament transparency, 408–409 transparency and confidentiality in balance, 412–414 transparency in disarmament generally, 392–395 verification and disarmament obligations in relation to, 402 verification and transparency in relation to, 401 domestic law and governance domestic transparency as model for international law, 538, 543– 547, 558–560, 599–600 transparency and democracy in relation to, 562–566 value and functions of transparency, 558–560 drawbacks of transparency as to international law and governance, 570–573

610

index

economic law see financial institutions; intellectual property; investment law; taxation; World Trade Organization (WTO) environmental impacts business law transparency, 492–494 environmental information see Aarhus Convention 1998 environmental law international environmental institutions (IEIs) information access, 30–37 information exchange, 38–42 issues summarized, 47–48 NGOs in relation to, 25, 26, 30–37 private sector engagement, 43–46 rationale for transparency, 26–29 and transparency in IEIs generally, 23–25 public environmental information Aarhus Convention see Aarhus Convention 1998 ECHR see European Convention on Human Rights (ECHR) issues summarized, 72–74 scope of transparency, 49–52 transparency issues overviewed, 52–56 transparency trends, 67–72 ethics of secrecy in communication strategy, 316–318 European Convention on Human Rights 1950 (ECHR) Aarhus Convention in relation to, 64–67, 72 transparency provisions generally, 64–65 European Court of Human Rights (ECtHR) openness, 438–440 expert advisers WHO Regulations, 290–291 external scrutiny openness in relation to, 140

financial institutions concept of institutional transparency, 77–79 FSB see Financial Stability Board (FSB) G-20 see Group of 20 (G-20) IMF see International Monetary Fund (IMF) international investment see international investment issues summarized, 109–111 World Bank see World Bank WTO see World Trade Organization (WTO) Financial Stability Board (FSB) NGOs in relation to, 108 transparency issues overviewed, 106–109 freedom of information open government in relation to, 436–437 see also human rights law, right to information; information access functions of transparency as to international law and governance, 558, 560–562 global governance see international law and governance global governance institutions effects of greater transparency generally, 519–525 for non-State actors, 530 for political power structures, 530–532 relations with non-State actors as to policy, 528–529 relations with States, 527–528 for State entities, 527 for States as international actors, 525–526 formal characteristics of transparency policies (table), 511–512 global administrative law of transparency, 515–519 issues summarized, 533

index legal obligations and transparency in relation to generally, 505 global institutions’ obligations, 507–515 State/public obligations affecting global institutions, 505–507 NGOs in relation to, 530 publicly available transparency policies (table), 509–511 and transparency generally, 502–504 Global Reporting Initiative (GRI) corporate governance role, 488–489 governance business see business law domestic governance, value and functions of transparency, 558–560 global see global governance institutions governmental openness transparency in relation to, 445–446, 470 governmentalization and problem of transparency, 477–478 Group of 20 (G-20) transparency issues overviewed, 104–105 H1N1 Pandemic 2009 see World Health Organization (WHO) health law see World Health Organization (WHO) human rights law issues summarized, 265–267 national government transparency current practice, 241–245 generally, 239–241 positive right to governmental information, 587–590 rights practices and transparency correlates (table), 263–264 rights practices and transparency in relation to, 263–264 national human rights institutions (NHRIs) compliance role, 245–249

611 democracy and transparency in relation to (table), 259–260 NGOs in relation to, 261–262 NHRIs worldwide (figure), 245–246 responsiveness to violation complaints procedure enquiries (figure), 262 transparency, 249–253 transparency as to domestic human rights law (table), 254–258 transparency as to international human rights law (table), 254–256 transparency as to law, 254–259 transparency as to practice, 259–261 transparency as to violation complaints procedure, 261–263 website transparency correlates (table), 252 working websites (figure), 251, 252 right to information African perspective, 232–234 beneficiaries of transparency, 553–554 business actors in relation to, 594–595 international organizations in relation to, 591–593 issues summarized, 234–238 openness in relation to, 223–224, 234–238, 395 positive right to governmental information, 587–590 and transparency generally, 223–224 transparency in relation to, 225–228, 586 see also freedom of information; information access see also European Convention on Human Rights 1950 (ECHR)

612

index

humanitarian law see International Committee of the Red Cross (ICRC) illusional aspect of transparency overview, 15–17 information globalized information society, 538–539 right to see human rights law transparency as, 10–15 information access environmental information see Aarhus Convention 1998 international environmental institutions, 30–37 international law-making, 431–435 see also freedom of information; human rights law, right to information information exchange international environmental institutions, 38–42 taxation see taxation institutional openness transparency in relation to, 502–503, 514–515 intellectual property Anti-counterfeiting Trade Agreement negotiations, 205–207 differentiations in transparency approaches, 200 domestic regulation generally, 208 implementation of international obligations, 208–209 international IP organizations generally, 200–201 issues summarized, 219–220 patents balance between rights holders and users, 212–215 biopiracy, 218–219 legal definitions, 217–218 patent information generally, 215–216 patentability requirements, 216–217

rights granting and monitoring, 209–211 transparency generally, 197–200 WTO and WIPO compared, 201–205 Intergovernmental Panel on Climate Change (IPCC) establishment, 38 transparency as guiding principle, 38 international adjudication access to oral proceedings audio-visual media, 453–457 public access, 448–453 transparency generally, 447–448 access to written proceedings domestic versus international access to pleadings, 438–444 issues analysed, 444–447 transparency generally, 437–438 common principle of transparency, 476 communication of judicial decisions by international courts, 463–467 by State parties, 467–470 and transparency generally, 462–463 deliberation and drafting protection of secrecy, 461–462 scope of secrecy, 457–461 direct versus State-mediated transparency, 470–472 ‘originary’ versus metatransparency, 472–474 proactive versus reactive transparency, 474–476 transparency generally, 436–437 International Committee of the Red Cross (ICRC) communication strategy consequences for compliance and transparency, 314–316 effectiveness of confidentiality approach, 312–314 ethical issues of secrecy, 316–318 factors, 308 issues summarized, 318–320 secrecy in relation to, 310–312 situational inputs, 308–310

index confidentiality principle, 551, 562 layers of non-transparency, 302 management of public information confidentiality approach, 302–304 legal argumentation, 305–307 as to legal views, 304–305 mandates, 298–299 private diplomatic activities bilateral confidential memoranda and discussions, 301 generally, 300–301 mobilization of other actors, 301–302 public statement of censure, 302 reminder of obligations to conflicting parties, 301 public-facing activities, 299 and transparency generally, 297–298 international environmental institutions (IEIs) see environmental law International Health Regulations (IHR) see World Health Organization (WHO) international investment see investment international law and governance accountability and transparency in relation to, 566–568 beneficiaries of transparency, 553–554 classic conception of, 26 current role of transparency, 3–6 deliberation and transparency in relation to balancing, 579–580 diplomacy and transparency, 574–575 generally, 574 negative effects of transparency, 575–578 positive effects of transparency, 578–579 research findings as to, 580–583 democracy and transparency in relation to, 562–566 domestic transparency as model, 538, 543–547, 558–560, 599–600

613

drawbacks of transparency, 570–573 functions of transparency, 558, 560–562 future research agenda, 604–607 global transparency issues summarized, 599–600 globalization-induced transparency, 539–540 globalized information society, 538–539 human right to information see human rights law increased demand for transparency, 534–536 more ‘public’ international law, 600–604 normative quality of transparency, 583–586 persons under transparency obligation, 549–553 power-shifting through transparency, 554–555 right to information see human rights law scope of transparency, 547–549 shifting perceptions of legitimacy, 556–558 transferability of transparency, 543–547 transparency as global public good, 542–543 transparency as proxy, 568–570 transparency in relation to generally, 379–381 transparency policy recommendations generally, 595 meta-transparency, 597–599 presumption of transparency, 596–597 qualified transparency, 595–596 transparency’s role currently, 3–6 value of transparency, 558, 560–562 see also global governance institutions; Security Council international law-making access to information, 431–435

614

index

international law-making (cont.) deliberative processes and transparency in relation to, 428–430 issues summarized, 435 participation, 422–428 transparency generally, 419–422 International Monetary Fund (IMF) Civil Society Policy Forum, 88–89 decision-making transparency actors’ roles, 84–85 civil society’s role, 88–90 inequality of members’ power, 85–87 procedural barriers in Executive Board meetings, 87–88 issues summarized, 92–93 NGOs in relation to, 88–90, 93 operational transparency, 91–92 transparency generally, 79–83 transparency reforms, 108 World Bank in relation to, 88–89, 94, 99, 104, 108, 109, 564 WTO in relation to, 114, 116–117 international organizations right to information in relation to, 591–593 see also global governance institutions international peace and security see disarmament and nonproliferation; Security Council international taxation see taxation investment future prospects for transparency, 170–171 levels of transparency, 150 non-transparent aspects generally, 159 information the public cannot find, 160–162 information the public is unaware of, 162–163 information with no public right of access, 159–160 intentional/strategic knowledge deficits, 165–166

unwitting knowledge defects, 163–165 scope of transparency study, 143–150 semi-transparent aspects generally, 156 information hard to obtain, 156–157 information hard to use, 157–159 strategies for increasing transparency competition, 169–170 generally, 166 innovation, 167 moderation, 167 reputation, 169 voluntary dissemination, 167–169 transparency generally, 142–143 transparent aspects, 151–155 Iran nuclear programme and nonproliferation obligations, 409–411 ius ad bello see warfare ius in bello see warfare ius post bello see warfare judicial proceedings see international adjudication justice Aarhus Convention provisions as to access, 63–64 landmines NGO monitoring, 401 legal advice as to warfare concealment of, 350–352 military operations see warfare Model Tax Information Exchange Agreement role of, 182–187 munitions (landmines and cluster munitions) NGO monitoring, 401

index national human rights institutions (NHRIs) see human rights law national security see warfare non-governmental organizations (NGOs) Aarhus Convention in relation to, 507 access to legal proceedings for, 437–438 accountability in relation to, 567–568 ACTA negotiations, 206 Apple Inc. case study, 497 BP case study, 493 CSR involvement, 489–490 decision-making role, 88–90 disarmament and non-proliferation, 415 empowerment through transparency, 555 FSB in relation to, 108 global civil society representation by, 553–554 global institutions in relation to, 530 human rights information access, 253 human rights monitoring, 241, 243–244, 249 IEIs in relation to, 25, 26, 30–37 IHR in relation to, 285 IMF in relation to, 93 information access and analysis role, 525–527, 551 input into transparency research, 605–606 inter-governmental organizational transparency towards, 521–522 intermediary role criticized, 551 international law-making involvement, 420–421, 422, 424–428 international treaty monitoring role, 560–561 Landmine and Cluster Munition Monitor, 401

615

lobbying for State transparency, 537–538 lobbying for transparency, 109, 514–515 NHRIs in relation to, 261–262 other actors in relation to, 528–529 patents granting involvement, 211, 569–570 restriction of access to information for, 70–71 Security Council in relation to, 431–432 transparency as mediating mechanism, 480–481 transparency enhancement role, 524–525 transparency policies, 511–512, 551 UNGC in relation to, 487–488 WIPO in relation to, 201–202 World Bank in relation to, 88–90, 93–94, 99–101, 103, 518, 528–529 WTO in relation to, 114, 117, 130, 137–138, 139–140, 202–203, 424, 426, 433 see also Global Reporting Initiative (GRI); International Committee of the Red Cross (ICRC); Transparency International non-proliferation see disarmament and non-proliferation non-State actors and global governance see global governance institutions normative quality of transparency international law and governance in relation to, 583–586 nuclear weapons disarmament and nonproliferation see disarmament and nonproliferation register, 397–398

616

index

open government freedom of information in relation to, 436–437 transparency as rules of, 586 openness benefit of complete, 419–420 burden of initiative for, 448 deliberation in relation to, 30–37 demands for more, 112–113, 136, 152 desirability of complete, 419–420 European Court of Human Rights (ECtHR), 438–440 external scrutiny in relation to, 140 general rule of, 446–447 governmental, 445–446, 470 importance to international institutions, 420–421 institutional openness, 502–503, 514–515 international commitment to, 273–274 international schemes to promote, 51–52 as irreversible process, 137–138 public support in relation to, 138 right to information in relation to, 223–224, 234–238, 395 scope for greater, 110 secrecy in relation to, 574–575 transparency in relation to, 133–134, 204–205, 207, 393, 429–430, 476, 486, 534–535, 549–551, 564 trend towards, 104 within UN organs, 430 ‘upgrading’ of, 436–437 WTO’s history of, 426 Organization for Economic Co-operation and Development (OECD) business governance structures, 483–485 pandemic of 2009 see World Health Organization (WHO) patents see intellectual property persons under transparency obligation

international law and governance in relation to, 549–553 policy recommendations as to international law and governance generally, 595 meta-transparency, 597–599 presumption of transparency, 596–597 qualified transparency, 595–596 population and problem of transparency, 477–478 power power-shifting through transparency, 554–555 transparency as, 17–19 private sector engagement international environmental institutions, 43–46 proxy transparency as, 568–570 public access investment information see investment judicial proceedings see international adjudication public environmental information see environmental law public good transparency as global, 542–543 public health see World Health Organization (WHO) public participation in environmental decision-making Aarhus Convention, 61–63 public-private partnerships WHO in relation to, 291–292 public support openness in relation to, 138 right to information see human rights law secrecy in communication strategy, 310–312 diplomacy see International Committee of the Red Cross (ICRC)

index ethical issues, 316–318 international adjudication see international adjudication and national security discourse, 327–330 openness in relation to, 574–575 presumption in warfare, 325–330 transparency as opposite, 25 warfare see warfare see also confidentiality Security Council ‘ancillary’ nature of transparency, 385–387 ‘ancillary’ obligation for transparency, 381–383 discretion and control in operation of, 383–385 institutional design and powers in relation to, 367–374 issues summarized, 391 NGOs in relation to, 431–432 optimum level of transparency, 387–391 transparency and soft law in relation to, 374–377 transparency in international law in relation to, 379–381 soft law and transparency in relation to business law see business law Security Council, 374–377 statistics and problem of transparency, 477–478 supply chain management business law transparency, 494–498 taxation importance of information exchange and transparency, 172–178 legal basis of information exchange, 178–182 Model Tax Information Exchange Agreement, 182–187 new standard for information exchange, 187–193 strengthening of transparency network, 193–196

617

transparency accountability in relation to, 478, 480–481, 566–568 ‘ancillary’ nature, 385–387 autonomous private governance aspect, 480–481 beneficiaries, 553–554 as commodity, 480–481 as concept, 6–10 as culture, 1–3 current role, 3–6 definitional issues, 6–10 deliberation in relation to balancing, 579–580 diplomacy and transparency, 574–575 generally, 574 negative effects of transparency, 575–578 positive effects of transparency, 578–579 research findings as to, 580–583 democracy in relation to, 562–566 direct versus State-mediated, 470–472 disciplinary aspect, 478 domestic transparency as model, 538, 543–547, 558–560, 599–600 drawbacks of, 570–573 external deployment, 478 functions of, 558, 560–562 future research agenda, 604–607 global issues summarized, 599–600 as global public good, 542–543 globalization-induced, 539–540 globalized information society in relation to, 538–539 human right to information see human rights law as illusion, 15–17 increased demands for, 534–536 as information, 10–15 internal deployment, 478 international law and governance in relation to see international law and governance marketing of, 480–481 as mediating mechanism, 480–481 norm legitimization aspect, 478

618

index

transparency (cont.) normative quality, 583–586 as object, 480–481 open government in relation to, 586 operational enhancement via, 478 as opposite of secrecy, 25 ‘originary’ versus metatransparency, 472–474 persons under transparency obligation, 549–553 policy recommendations generally, 595 meta-transparency, 597–599 presumption of transparency, 596–597 qualified transparency, 595–596 as power, 17–19 power-shifting via, 554–555 private sphere generally, 479–481 proactive versus reactive, 474–476 problem of reconciling different aspects of, 477–482 as proxy, 568–570 public sphere generally, 478–479 right to information see human rights law risk management aspect, 480–481 scope of, 547–549 shifting perceptions of legitimacy, 556–558 soft law in relation to, 374–377 as symptomatic discussion, 478–479 transferability, 543–547 value of, 558, 560–562 see warfare see also entries for specific areas of international law e.g. environmental law; global governance institutions; openness; Security Council Transparency International definition of transparency, 7–8 lobbying for transparency of States, 537–538 United Nations Economic Commission for Europe (UNECE)

Convention see Aarhus Convention 1998 United Nations Environment Programme (UNEP) establishment, 24–25 establishment of IPCC, 38 global major groups and stakeholders forum, 35–36 Governing Council practice, 33 guidelines for environmental information (2010 UNEP Guidelines), 68–69, 73 United Nations Global Compact (UNGC) NGOs in relation to, 487–488 United Nations Security Council see Security Council value of transparency as to international law and governance, 558, 560–562 war crimes concealment of, 349–350 warfare conduct of war checks on excessive secrecy, 352–353 concealment of war crimes, 349–350 legal advice, concealment of, 350–352 military necessity for secrecy, 345 normative framework, 342–345 obstruction of policy debate, 347–349 political necessity for secrecy, 345–347 decision for war disclosure when operational need for secrecy ended, 338–339 manipulation of discourse to justify war, 332–337 mechanisms for oversight and information sharing, 340–342

index methods to reduce excessive secrecy, 337 normative framework, 330–332 oversight of depth of secrecy, 339–340 strengthening standard of proof, 337–338 issues summarized, 360–363 national security and secrecy, 327–330 post-war disclosure balance of accountability and secrecy, 355–358 effective measures for information gathering, maintenance and access, 358–360 normative framework, 353–355 presumption of secrecy, 325–330 and transparency of war decision generally, 321–325 war and knowledge in relation to, 325–327 see also disarmament and nonproliferation; weapons weapons NGO monitoring of landmines and cluster munitions, 401 nuclear weapons see disarmament and non-proliferation nuclear weapons register, 397–398 websites, NHRIs see human rights law World Bank access to information policy, 527–528 Civil Society Policy Forum, 88–89 decision-making transparency, 99–102 denials of information, appeal procedure, 110–111, 512–514 differences of opinion within, 528–529 documentary transparency, 94–99 IMF in relation to, 88–89, 94, 99, 104, 108, 109, 564 issues summarized, 103–104

619

NGOs in relation to, 88–90, 93–94, 99–101, 103, 518, 528–529 transparency generally, 93–94, 109 transparency rationale, 516–518 transparency reforms, 108, 516–518 WTO in relation to, 114, 116–117 World Health Organization (WHO) Expert Advisory Panels and Committees Regulations, 290–291 global health law and transparency in relation to, 271 International Health Regulations (IHR) and 2009 H1N1 Pandemic adoption of Regulations, 277–279 independent reporting mechanisms effectiveness, 283–287 transparency developments, 287–290 law-making and transparency, 275–277 NGOs in relation to, 285 overview of Pandemic, 280–282 transparency concerns as to WHO, 282–283 issues summarized, 292–293 public–private partnerships, 291–292 and transparency generally, 271–272 World Intellectual Property Organization (WIPO) intellectual property regime compared with WTO, 201–205 NGOs in relation to, 201–202 World Trade Organization (WTO) adjudication transparency proceedings of Panel and Appellate Body, 118–123 decision-making transparency, 114–118 external transparency outreach, 133–134 public hearings, 131–133

620 World Trade Organization (WTO) (cont.) public relations of WTO adjudicating bodies, 133 future prospects for transparency, 139–141 history of openness, 426 IMF in relation to, 114, 116–117 intellectual property regime compared with WIPO, 201–205 internal transparency amicus curiae, 129–131

index change of dynamics, 134–137 confidentiality of proceedings, 123–127 due process, 127–129, 133–134 private counsel, 129–131 public participation, 133–134 NGOs in relation to, 114, 117, 130, 137–138, 139–140, 202–203, 424, 426, 433 transparency in WTO generally, 112–113 World Bank in relation to, 114, 116–117