This collection of essays is the result of a research project exploring the role played by transparency in international law. Although the importance of transparency has been acknowledged in domestic law there has been scant exploration of the role of transparency in international law. Accordingly, the main objective of Transparency in International Law, edited by Bianchi and Peters, is to ‘contribute to the understanding of transparency's potential as a general concept or norm, and its relevance to the international legal system’.
Bianchi and Peters chose not to specify a compulsory definition or analytical framework, and instead allowed contributors to frame and analysis transparency within their respective fields. This has resulted in a varied collection of scholarship that considers, from within different international law domains, the framing and content of transparency from practical and theoretical standpoints.
The book is structured by reference to six subject areas: international environmental law; international economic law; international health law; international human rights law; international humanitarian law; and international peace and security law. A seventh part explores cross-cutting issues: transparency in international law-making and international adjudication; transparency and business in international law; and formal transparency policies in global governance institutions.
As editors, Peters and Bianchi successfully navigate through the comprehensive discourse of the contributions to highlight commonalities and establish support for their argument that, although transparency may not (yet) have achieved the status of hard law in the international domain, it is an important emerging norm of international law. In establishing this argument, various thought-provoking justifications emerge that are summarized carefully in Peters' concluding chapter. However, the two findings detailed below perhaps pave the way for the conclusion that while transparency is not yet crystallized as ‘hard law’, it may have an interstitial role.
First, transparency has both an instrumental and an intrinsic value. For example, transparency can be used to increase the accountability of governance (as noted by Hinojosa Martínez) and is linked to other principles such as participation (as noted by Klaaren and Creamer and Simmons), reasoned decision-making, legality, legitimacy (Brunnée and Hey argue that transparency mechanisms serve to foster input and output legitimacy), accountability and confidence-building (see Sossai).
Peters also notes the concept of transparency is intrinsically ‘bound up with values such as democracy, rule of law, integrity and trust’. Again this is supported by contributors: Cottier and Temmerman state that transparency is a fundamental principle of democracy; Sossai states that transparency within the disarmament regime can encourage democratic oversight and public scrutiny; and Ben-Naftali and Peled detail the detrimental consequences of automatic secrecy (democratic and enforcement deficits, and a lack of respect for the rule of law).
Second, the benefits of transparency have to be balanced with the negative effects of transparency, and transparency itself may have to be balanced with competing priorities and values.
For example, transparency requirements may negatively impact negotiations, as demonstrated within international financial institutions (Hinojosa Martínez); global health law-making (Bruemmer and Taylor); and the WTO (Delimatsis). There are a myriad of reasons for this, including without limitation: representatives with incentives to adopt a particular public position (Bruemmer and Taylor), and increased transaction costs as a result of transparency requirements (Delimatsis). Financial sustainability may also need to be balanced against transparency in areas other than negotiations—for example, Sossai notes that comprehensive verification mechanisms required by non-proliferation regimes are likely to suffer in a global financial recession.
Transparency and opacity may also compete during times of war, with a premium traditionally placed on secrecy to protect national security. Ben-Naftali and Peled's essay is therefore particularly valuable for its compelling argument that the presumption in favour of secrecy during wartime should be reversed. Transparency may also need to be balanced against humanitarian concerns: for example Ratner notes that the work of the International Committee of the Red Cross may not be possible without secrecy.
In summary, these two findings demonstrate the difficulties of defining both transparency and its limits, and the danger of treating transparency as an unconditional virtue. They support the conclusion that due to its vague and broad nature, transparency cannot yet be translated into a binding legal rule in accordance with traditional sources of international law. However, the findings also generally highlight the essential central role played by transparency within international law domains: on a functional and intrinsic level and as a balancing factor.
This essential central role is further reflected within many of the essays in this book with various contributors concluding that there is some form of emerging ‘principle’ of state transparency within their respective fields (see for example Cottier and Temmerman, Ebbesson, Neumann and Simma) or even an emerging global administrative law of transparency (Donaldson and Kingsbury).
Drawing together the contributions, Bianchi and Peters (supported by Tzanakopoulous' useful analysis) therefore aptly support their conclusion that while transparency is not (yet) hard law in the international context, it may still exist in its own right as a concept: a normative prescription of a general character that can be discerned ‘whatever the doctrinal quality of the concept’. Against the backdrop of Ago's notion of meta-legal principles and Lowe's theory of ‘interstitial norms’ such a concept of transparency acts, at the very least, as a ‘permanent connector between the law and the changing societal realities’.
To conclude, this book can be read both as a collection of stand-alone essays reviewing transparency within specific international law regimes, and as a comprehensive survey of an emerging interstitial principle of transparency within international law. It is difficult to do justice in a short review to the wealth of scholarship contained within this book. However, at the very least this is a thought-provoking book that paves the way for further research on a topic that is likely to steadily gain relevance and importance within international law.
