Power and the Public: The Nature and Effects of Formal Transparency Policies in Global Governance Institutions
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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. 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 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. The second is a further shift in the locus of decision-making 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. 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 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.
Source Publication
Transparency in International Law
Source Editors/Authors
Andrea Bianchi, Anne Peters
Publication Date
2013
Recommended Citation
Donaldson, Megan and Kingsbury, Benedict, "Power and the Public: The Nature and Effects of Formal Transparency Policies in Global Governance Institutions" (2013). Faculty Chapters. 973.
https://gretchen.law.nyu.edu/fac-chapt/973
