Transparency in international law-making

Boyle, Alan and McCall-Smith, Kasey (2013). Transparency in international law-making. In: Bianchi, Andrea and Peters, Anne eds. Transparency in International Law. Cambridge: Cambridge University Press, pp. 419–435.



In 1919 President Woodrow Wilson famously called for a system of “open covenants..... openly arrived at.” He may not quite have lived up to his own aspirations, 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. More specifically, we will consider transparency mainly from the stand-point 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 legitimise 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 televised and reported by the press. One writer suggests that transparency has ‘attained quasi-religious significance in debate over governance and institutional design.’ In this context the role of transparency is to 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 counter-productive 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.

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