“Transparency in International Law,” edited by Andrea Bianchi and Anne Peters.
Published 2013, Cambridge University Press
The 20 chapters of this book, edited by two Swiss academics, provide a sweeping survey of transparency at dozens of international organizations, in theory and practice.
The editors purposefully did not prescribe a definition of “transparency,” while admitting that the question “haunted us,” so almost all the authors offered generous helpings of differing definitions.
The chapter authors are substantially supportive, but not uncritical, of transparency.
The two editors exhibit some skepticism. Bianchi opens by saying transparency is “chameleon-like and may change depending on context.” She credits it with having “the irresistible force of a wave” and wants to explore “the less edifying and often dark sides of transparency.”
Co-editor Peters ends the book by saying that the new transparency in the international sphere is consistent with “publification” in international law. She says “there is a trend towards more transparency in international governance, as a matter of practice and principle.” She adds, “But only in some areas this principle has attained the status of hard law.”
Peters’ review of research on transparency in negotiations concludes, “Transparency in deliberations always implies a trade-off.” The effectiveness of existing transparency requirements is an “open question,” concludes Peters. She calls for more empirical research, observing that it may be impossible to develop a cost-benefit equation and noting the difficulties of research in the area.
The design of transparency regimes “should be built on empirical findings on the effects of transparency on the quality of international deliberations,” Peters says.
Yet she also argues that transparency policy should start with a “presumption of transparency under which the closure of meetings, the classification of documents, etc. need a specific justification.”
Simultaneously calling for more research and supporting a presumption of transparency seems to leave ambiguous the question of where the burden of proof lies.
Whaling and More
The intervening chapters focus on specific international institutions, written by academics from many countries, provide a wealth of detail and make this the most comprehensive volume on transparency at international institutions.
The authors generally speak favorably about transparency in theory and in practice. Short summaries scarcely do justice to the depth of research and multiple conclusions.
The range of subjects is wide, beginning with the International Whaling Commission (and other international environmental institutions). The authors conclude that greater transparency has fostered “input and output legitimacy.” A related chapter surveys environmental transparency worldwide, finding “significant differences.”
The chapter on the World Bank, the G20 and other major international financial institutions supports more transparency. Even after reforms at the World Bank, “there is excessive latitude for opaqueness.” And the Financial Stability Board “should take its problem of opaqueness more seriously.” Overall, IFI’s policies remain “very complex” with “great discretion to the institution.” The financial industry finds ways to lobby, the author writes, ending, “Lack of transparency normally works against the interests of the average citizen.”
The World Trade Organization could bolster its legitimacy and possibly achieve better outcomes with additional transparency, the author of the WTO chapter writes, making a variety of suggestions. The review documents expanded access to dispute-settlement proceedings. While acknowledging the possibility of negative effects on negotiations, he also cites possible benefits and notes the increasing leaks of documents.
The “smart money” would be on greater transparency in the context of investor-state treaty arbitration. “The bad news is that despite much progress, many corners of the international investment law regime remain shrouded in darkness,” the author summarizes.
The chapter on international taxation says that despite movement toward greater transparency among national tax authorities, “the actual existence of a novel international binding norm on administrative cooperation is still pending.”
The chapter on international intellectual property negotiations draws on the recent experiences, including the controversial failed effort to develop an Anti-counterfeiting Trade Agreement. While defending the need for some confidential negotiations, the author nevertheless sees a need for “inclusiveness” and for “sequencing of public and undisclosed stages which overall provide full disclosure of information and the building of mutual trust among all affected actors.”
Another chapter uses several South African cases to illustrate questions about the conceptual underpinnings of the right of access to information in international law.”
An examination of the transparency of national human rights institutions finds considerable variation in their transparency. But the authors conclude that it can’t be ascertained if greater transparency encourages better human rights practices.
The World Health Organization’s evolution into a platform for handling high-priority health issues needs to be accompanied by a commitment to transparency, according to authors who describe as “unfortunate” the defeat of proposals to disclose the regular national reports to WHO.
The International Committee of the Red Cross is an unusual body to be included and provides a “counter-narrative” example of an institution that is resolutely opaque. The author suggests that the Red Cross could do a better job of explaining itself, but says “there is much to be said” for not openly criticizing governments.
“How Much Secrecy Does Warfare Need?” The authors say, “The national security discourse has successfully equated secrecy with security and transparency with risk” and counter that “all too often it is the secrecy that generates risk… and information sharing that may augment security.” They make suggestions for a discourse, observing that the topic is “not for the short of breath.”
Tackling another bastion of opacity, the UN Security Council, the author documents the use of “formal informals” to maintain the secrecy of the discussions and resistance to proposals for change. He explores how UN members have and could require more transparency. The degree of transparency demanded, he writes, has depended on the intensity of reaction to Council decisions and other situational factors.
Transparency “plays a crucial role in the field of disarmament and non-proliferation,” we learn in a chapter that examines nuances such as the choice of “transparency tools” and new challenges. Participation by NGOs in the talks is seen as beneficial.
In a chapter called “Transparency in International Law-making,” the authors look broadly at participation, finding a variety of practices, and “widening” access to information. The chapter addresses “both positive and negative effects” of access to information. The authors says there is only a “limited basis the compelling” international organizations or treaty bodies to make a great deal of information available. The lack of identifiable international law in the area, they say, is “a remarkable and quite possibly sobering conclusion.”
As for transparency in international adjudication, the authors review many practices before concluding that there is a “normative skeleton” of an overarching judicial transparency principle which is likely fleshed out further as the proliferation of international courts and tribunals progresses and experimentation with the rules and practices continues.
The creation and impact of international “soft law” is one main topic of another hard to digest chapter which deals with subjects such as the development of international frameworks for transparency in the context of corporate governance. Transparency is shown to be a mechanism for accountability, and for risk management, of autonomous private governance systems. Transparency also serves as a “mediating mechanism for communication between public and private, internal and external, stakeholders.” International transparency systems are unlikely to harmonized, the author says. They contribute to a shift of power to “private governance systems beyond the State.”
The multiplicity of transparency regimes in international bodies is documented in a chapter that also speculates about the causes of markedly varied practices. The authors point to “some pathways through which norms of transparency may develop further.” The authors explore 12 hypotheses about the effects of transparency.
– Toby McIntosh, FreedomInfo.org editor
Filed under: IFTI Watch