Glasnost in the Security Council:
The Value of Transparency
Devika Hovell
Forthcoming in Kutafin University Law Review (Russia), 2016
LSE Law, Society and Economy Working Papers 15/2016
London School of Economics and Political Science
Law Department
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Glasnost in the Security Council:
The Value of Transparency
Devika Hovell *
Abstract: The value of transparency in decision-making is regarded as something of a truism
in the public sphere; something that is uncontroversial and requires little by way of
justification. In the Security Council setting, there are mounting calls for greater transparency
as if publicity is some form of unconditional virtue. However, this easy embrace of
transparency evades difficult questions and fails to consider the tensions it conceals. The
principle of transparency is not as easy to sustain, either in theory or practice, as it first might
seem. Publicity might be necessary to justify policy, but secrecy may also be necessary to effect
some policies. The primary aim of this essay is to ask a question to which an easy answer is
sometimes presumed: why do we need transparency in the Security Council sanctions context?
In this essay, I set the foundations for a value-based theory of transparency for Security
Council sanctions decision-making. It is only when we understand ‘why’ transparency is
needed in this context that we can adequately answer other questions, including the ‘who’,
‘what’, ‘when’ and ‘how’ questions.
*
Associate Professor, Department of Law, London School of Economics and Political Science.
15/2016
I.
INTRODUCTION
The value of transparency in decision-making is regarded as something of a truism
in the public sphere; something that is uncontroversial and requires little in the
way of justification. In Andrea Bianchi’s opening chapter to his co-edited
collection on Transparency in International Law, he remarks ‘it is almost impossible to
find someone who would agree to say anything negative about transparency in
public’.1 Who, after all, could argue against transparency?
As John Donne noted in his poetic appeal for constancy and truth (in love if
not in political decision-making), ‘poor heretics … there be’.2 This essay does not
purport to be heretical. However, it argues that this easy embrace of transparency
evades difficult questions and fails to consider the tensions it conceals.
Transparency is certainly a term with great rhetorical power. It was declared one of
the ‘top words’ of the 21st century by the Global Language Monitor.3 Yet
rhetorical consensus regarding transparency’s value is insufficient. There is risk
that too cavalier an attitude to the value of transparency could result in costly and
elaborate solutions without attention to the goals these measures are intended to
achieve in practice. In fact, in practical terms, transparency is rarely argued for as a
legal principle and nearly all transparency regimes have explicit exceptions.4
Transparency is never transparency of everything.5 Indeed, transparency of
everything would arguably not be transparency; information overload is instead a
device through which to obscure knowledge and understanding. Certainly,
transparency does not always improve the efficiency and effectiveness of decisionmaking or decision outcomes. The work of the International Committee of the
Red Cross, juries, judges, executive Cabinet meetings, peace negotiations and
hiring committees all rely on a degree of secrecy to achieve their aims successfully.
So, when turning to the question of transparency of Security Council
sanctions decision-making, I do not start from the position that there is a ‘right’ to
transparency. In a previous paper on the topic, I set myself the task of establishing
in customary international law or as a general principle a right of access to
information in international law.6 I failed. There is no such recognized legal right.
Equally, economic arguments to ‘ownership’ of information produced using public
funds raised by Joseph Stiglitz in the domestic governmental context do not easily
Andrea Bianchi, ‘On Power and Illusion: The Concept of Transparency in International Law’ in Andrea
Bianchi and Anne Peters (eds), Transparency in International Law (CUP 2013), 2.
2 John Donne, ‘The Indifferent’ in John Donne: Collected Poetry (Penguin 2012).
3 ‘Political transparency’ was declared one of the top words for the first 15 years of the 21st century by the
Global Language Monitor: http://www.languagemonitor.com/word-of-the-year/top-words-for-the-first15-years-of-the-21st-century-the-trends-they-portend/.
4 Elizabeth Fisher, ‘Transparency and Administrative Law: A Critical Evaluation’ (2010) 63(1) Current
Legal Problems 272, 281.
5 Ibid.
6 Devika Hovell, ‘The Deliberative Deficit: Transparency, Access to Information and UN Sanctions’ in
Jeremy Farrall and Kim Rubenstein, Sanctions, Accountability and Governance in a Globalised World (CUP
2009).
1
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Devika Hovell
Glasnost in the Security Council: The Value of Transparency
translate to an international legal institution where the link between the relevant
information and taxpayer dollars is more tenuous.7
The primary aim of this essay is to ask a question to which we have so far
presumed an answer: why do we need transparency in the Security Council
sanctions context? The answer cannot be simply that it is an ‘unconditional
virtue’.8 This is neither persuasive for those resisting calls for greater transparency,
nor helpful to us in determining the scope of the principle and its limits. It is often
assumed that information, once set free, will produce an informed, engaged public
that will hold public officials accountable.9 Yet, the principle of transparency is not
as easy to sustain, either in theory or practice, as it first might seem. Publicity is
necessary to justify policy, but secrecy may also be necessary to effect some
policies.10 In this essay, I set the foundations for a value-based theory of
transparency for Security Council sanctions decision-making. It is only when we
understand ‘why’ transparency is needed in this context that we can adequately
answer other questions (the ‘who’, ‘what’, ‘when’, ‘how’ questions).
II.
THE ‘WHY’ OF TRANSPARENCY
Transparency has been described as an ‘indicator of legitimacy’.11 Professor
Elizabeth Fisher has defined it as ‘the decision to make publicly visible, or provide
public access to, the resources on which an exercise of public power may be
based’.12 This definition recognizes that transparency is not so much about
individual access to information as about public access. In this way, it should be
distinguished from due process.13 Transparency is not so much about fairness to
individuals directly affected by the decision-making process, but about power and
the role that access to information can play in legitimizing exercise of that power.
Kant famously invoked publicity (a close relative of transparency) as a
legitimacy test. In the second appendix to his essay ‘Perpetual Peace’, Kant
proposed the following ‘transcendental formula of public law’:
All actions relating to the right of other human beings are wrong if their
maxim is incompatible with publicity.
Joseph E Stiglitz, ‘On Liberty, the Right to Know and Public Discourse: the Role of Transparency in
Public Life’ (Oxford Amnesty Lecture, 27 January 1999).
8 Andrea Bianchi, supra n 1, 2.
9 Mark Fenster, ‘The Opacity of Transparency’ (2006) 91 Iowa Law Review 885, 885.
10 Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Harvard University Press 1996),
101.
11 Alan Boyle and Kasey McCall Smith, ‘Transparency in International Law-making’ in Bianchi and
Peters, supra n 1.
12 Fisher, supra n 4, 274.
13 For discussion of due process in the sanctions context, see Devika Hovell, ‘Due Process in the United
Nations’ (2016) 110(1) American Journal of International Law 1.
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In this formula, Kant links the concept of justice with the approval of the public
by means of a categorical test.14 In doing so, Kant focuses on the ‘maxim’
underlying decision-making, directing attention away from political actions
themselves to the reasons for those actions. The concern is with justification, and
specifically as to whether that justification can withstand publicity. As Kant goes
on to explain, ‘[a] maxim which I cannot divulge without defeating my own
purpose must be kept secret if it is to succeed; and, if I cannot publicly avow it
without inevitably exciting universal opposition to my project, the necessary and
universal opposition which can be foreseen a priori is due only to the injustice
with which the maxim threatens everyone’.15 In his qualified defence of the
principle, David Luban highlights the notion of self-frustration, reformulating the
principle to render more explicit the link between publicity and legitimacy:
All actions relating to the right of other human beings are wrong if
publicizing their maxim would lead to self-frustration by undercutting the
legitimacy of the public institutions authorizing those actions.
Of course, Kant’s test is ultimately a hypothetical one: an ‘experiment in pure
reason’.16 The publicity principle merely invites those engaged in public decisionmaking to ask, ‘could I still get away with this if my reason for doing so became
publicly known?’17 Kant’s argument is not that every political action should be
made public. Indeed, Kant actually permits extreme degrees of secrecy and
suppression in politics. David Luban describes the test as a ‘plea directed toward
decision-makers’, more useful as a principle of first-person deliberation by
decision-makers than as a principle of third-person evaluation by observers.18
In this essay, I am interested whether the publicity principle is useful, not
merely as a principle of political morality, but also as a principle of institutional
design. The focus on public justification and legitimacy invites a connection with
deliberative democracy theory. It is a connection that deliberative democracy
theorists themselves acknowledge. As Simone Chambers recognizes, ‘[a]ll theories
of deliberative democracy contain something that could be called a publicity
principle’.19 The principle has many forms but ‘almost always involves a claim
about the salutary effects of going public with the reasons backing up a policy,
proposal or claim’.20
Kevin R. Davis, ‘Kantian “Publicity” and Political Justice’ (1991) 8(4) History of Philosophy Quarterly 409.
Immanuel Kant, Perpetual Peace (Penguin Books 2009), 62.
16 David Luban, ‘The Publicity Principle’ in Robert E Goodin, Theory of Institutional Design (CUP 1996),
156.
17 Ibid.
18 Ibid, 168.
19 Simone Chambers, ‘Behind Closed Doors: Publicity, Secrecy, and the Quality of Deliberation’ (2004)
12(4) The Journal of Political Philosophy 389, 390.
20 Ibid, 390. See Joshua Cohen, ‘Deliberation and democratic legitimacy’ in J Bohman and W Rehg (eds),
Deliberative Democracy (MIT Press 1997), 76-7; Seyla Benhabib, ‘Toward a deliberative model of democratic
legitimacy’ in Democracy and Difference (Princeton University Press 1996), 72; Gutmann and Thompson,
14
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Glasnost in the Security Council: The Value of Transparency
The basic principle is that, in a deliberative democracy, the principle of
publicity requires that public authorities adopt only those policies for which
officials give public justifications.21 However, the basic principle also admits of
qualifications. As Gutmann and Thompson recognize, ‘[p]ublicity is necessary to
justify policy, but secrecy may also be necessary to effect some policies’.22 Luban
argues that the key to reconciling secrecy with the publicity principle lies in
realizing that the publicity principle can be used to test ‘second-order’ as well as
‘first-order’ justifications. In this, he means that, if the reason for keeping a policy
secret can itself be justified in a public manner, then the second-order policy of
keeping the first-order policy secret is fully compatible with the publicity principle.
Publicity about secrecy, appropriately arranged, is the only form in which the
deliberative perspective accepts the necessity of secrets.23
This ‘deliberative democracy’ reformulation of the publicity principle,
providing a mechanism through which to balance publicity and secrecy in the
interests of legitimacy, offers the makings of a workable test for transparency in
public decision-making. The test has three limbs:
1. Decisions of public authorities will be justified where they are made in the
exercise of legitimate authority.
2. A public institution should publicize sufficient information to enable the
public to understand justifications can be reconciled with the institution’s
legitimate authority.
3. An institution may decline to publicize justifications where this refusal can
itself be justified in the exercise of legitimate authority.
(a)
LEGITIMACY, THE PUBLICITY PRINCIPLE AND THE UN SECURITY COUNCIL
In this essay, I work to ascertain whether the publicity principle provides the
foundations for a workable test for transparency in the Security Council sanctions
context. The link between legitimacy and transparency is a useful one in the
Security Council setting where legitimacy has a far more persuasive appeal than
law. The UN Security Council is not a government. However, it is like
governments in that it issues rules and publicly attaches significant consequences
to compliance or failure to comply with them – and claims the authority to do
so.24 It is therefore important that the Council is not only legitimate, but is
perceived to be legitimate. The Council has displayed a growing recognition of the
need to incorporate the rule of law, though as a matter of policy rather than law.25
supra n 10, 100-1; Jon Elster, ‘The market and the forum: three varieties of political theory’, in J Bohman
and W Rehg (eds), Deliberative Democracy (MIT Press 1997), 12.
21 Gutmann and Thompson, supra n 10, 101.
22 Ibid.
23 Gutmann and Thompson, supra n 10, 105.
24 Allen Buchanan and Robert Keohane, ‘The Legitimacy of Global Governance Institutions’ (2006) 20(4)
Ethics and International Affairs 405, 406.
25 Security Council Report, Cross-Cutting Report on the Rule of Law (2011), 41.
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As demonstrated by Security Council debates in the sanctions context, the primary
motivation of Council members in introducing procedural limitations has been to
enhance implementation of its decisions and therefore the Council’s
effectiveness.26 The Council seems keenly aware of the limits of formalist legal
provisions such as Article 25 and 103 in shoring up its authority. In contemporary
international society, it is aware it must incorporate far more robust and inclusive
mechanisms than member state ratification of the UN Charter to fulfil its goals.27
The link between legitimacy and transparency explains why transparency has
what Anne Peters describes as ‘transformative potential’ in the international
setting. If Security Council members are persuaded that greater transparency will
enhance the legitimacy of decision-making, they are far more likely to push for
reform than they would be on the basis of a formalist argument that such
principles are ‘legally binding’. A common critique against international institutions
is that they take power away from elected legislators, locating it instead in
unaccountable institutions whose decisions are insulated from open public
scrutiny.28 As Buchanan and Keohane note in their seminal account of legitimacy
for global governance institutions, this critique matters because, in a democratic
era, multilateral institutions will only thrive if they are viewed as legitimate by
democratic publics. An institution’s ability to perform its functions may depend on
whether those to whom it addresses its rules regard them as binding and whether
others within the institution’s domain of operation support or at least do not
interfere with its functioning.29 This has had practical repercussions for the
Security Council sanctions framework. Non-state actors, including banks, airlines
and other representatives of private industry, have the capacity to undermine the
effectiveness of the sanctions regime if they facilitate offers of employment,
educational or travel opportunities, decline to freeze funds or actively contribute
funds to those on sanctions blacklists.
In terms very similar to the publicity principle proposed above, Buchanan
and Keohane explain why transparency is an ‘obvious [requirement] for the
legitimacy of global governance institutions’.30 Consistently with the first limb
described above, Buchanan and Keohane note, first, that institutional actors must
offer public justifications of controversial and consequential institutional policies. The
availability of accurate information is not enough. Rather, secondly, potential
critics must be placed in a position to determine whether the public justifications
are cogent, whether they are consistent with the current terms of accountability
and whether, if taken seriously, these justifications call for revision of the current
See, for example, ‘Debate on Security Council Working Methods’, 7285th meeting of Security Council
(23 October 2014) UN Doc S/PV.7285 (in particular contributions by Ms Kimberly Prost, Australia,
Chile, Russia, and Nigeria).
27 Buchanan and Keohane, supra n 24, 418.
28 Boyle and McCall Smith, supra n 11.
29 Buchanan and Keohane, supra n 24, 408.
30 Ibid.
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Glasnost in the Security Council: The Value of Transparency
terms of responsibility. That is, consistently with the second limb above, sufficient
information must be provided to enable both accountability-holders and those
who may contest the terms of accountability to understand whether the public
justifications can be reconciled with the institution’s legitimate authority.
Buchanan and Keohane do not go so far as to develop the third limb, namely,
conditions in which it is appropriate to withhold information. However, they note
that, under some circumstances, transparency can have malign effects and
conflicts between transparency and efficiency may be severe. Their overarching
position is that ‘[i]f an institution persistently fails to cooperate in making available
to outsiders the information that would be needed to determine whether
[legitimacy criteria] are satisfied, that by itself creates a presumption that it is
illegitimate’.31 However, they characterize this as a ‘strong but rebuttable
presumption’, without going into detail as to the conditions under which the
presumption can be rebutted.32
The link between transparency and legitimacy has accordingly been
established in influential literature. There is broad support for the pillars of the
publicity principle as I have formulated it above. Frustratingly, in the Security
Council context, this begs far more difficult questions that it answers. In referring
to the ‘legitimacy’ of public institutions, Luban clarifies that he means the term to
refer to ‘the institution’s capacity to garner empirical support based on its
constituents’ moral commitment to it’.33 The publicity principle assumes a
connection between a public institution and a constituency or ‘public’ with which
it interacts and which ensures its effectiveness. The assumption is that the
institution’s authority is in some way dependent on respect within the community
it supports and which, in turn, supports it. None of these elements is
straightforward to identify in the Security Council context. Is the Security Council
a ‘public institution’? If so, what are the parameters of the public it serves? Does
this public provide the Security Council with the source of its authority? If not,
what do we understand the ‘legitimate authority’ of the Security Council to be?
Ultimately, the load-bearing question of the foundations of UN Security
Council authority has no easy answer. My contention is that the development of a
transparency framework for the Security Council framework is heavily reliant on a
greater understanding of the source of the Council’s authority. As my task is to
write a piece on transparency in the sanctions context rather than a treatise on the
foundations of Security Council authority, it follows that – in this essay – the cart
will be positioned some way before the horse. In this essay, I merely sketch out in
the following section my understanding of the source of Security Council
authority. I do this knowing that, in time, I will need to justify the position I have
taken in greater depth.
Ibid, 429.
Ibid, 431.
33 Luban, supra n 16, 192.
31
32
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(b)
UNDERSTANDING SECURITY COUNCIL AUTHORITY
Understanding authority involves answers to two questions: what is authority and
when is it legitimate?34 Authority, at least in its de facto sense, can be described as ‘a
relation between the one who commands and the one who obeys’.35 It is a relation
of power distinct from coercion, rational persuasion and instrumental calculations
of costs and benefits. Indeed, as Ian Hurd remarks, to either coerce or to reason
with a subordinate should be taken as signs of the absence of authority’.36 The
other crucial element is that hierarchical relation is recognized as legitimate. Here,
my concern is not merely with de facto authority, but rather with authority in a
normative sense: ‘the normative power to change another’s normative relations’.37
The distinction between de facto and legitimate authority is critical. As Nicole
Roughan explains, ‘[i]f legitimate authority is authority that carries whatever
normative weight is given to it by a justificatory theory, and de facto authority
describes a factual situation without any direct normative consequences, then to
get to the normative, one has to add a justificatory story that gives value to the fact
of an authority’s existence’.38
It is therefore the justification of the Security Council’s authority that is crucial.
‘Public authority must be justifiable to those over whom it is exercised’.39 The
justificatory task lies in specifying the conditions upon which legitimate authority
depends. It is a task, of course, that characterizes the key point of dispute between
authority theorists. The classic understanding of authority draws on the work of
Joseph Raz. According to Raz’s ‘Normal Justification Thesis’, an authority is
legitimate when the subject is likely better off ‘if he accepts the directives of the
alleged authority as authoritatively binding …, rather than by trying to follow the
reasons which apply to him directly’.40 The ultimate aim authority must serve is to
promote the subject’s conformity to reason. Authority is consistent with autonomy
as it provides the service of mediating between people and the reasons that apply
to them. Yet it also involves the ‘surrender of private judgment’: in Freidman’s
analysis, ‘[t]o defer to authority … is to refrain from insisting on a personal
examination and acceptance of the thing one is being asked to do (or to believe) as
a necessary condition of doing it (or believing it)’. The standard does not give
licence to individuals to fulfil their subjectively-given preferences and goals, but is
Nicole Roughan, Authorities (OUP 2013), 20; Ian Hurd, ‘Theories and Tests of International Authority’
in Bruce Cronin and Ian Hurd, The UN Security Council and the Politics of International Authority (Routledge
2008), 24.
35 Hannah Arendt, Between Past and Future (Penguin 1997), 93.
36 Hurd, supra n 34, 25.
37 Scott Shapiro, ‘Authority’ in Scott Shapiro and Jules Coleman, ‘Oxford Handbook of Jurisprudence
and Philosophy of Law (OUP 2002), 398.
38 Roughan, supra n 35, 30.
39 Ibid, 34
40 Joseph Raz, The Morality of Freedom (1986), 53-57.
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Glasnost in the Security Council: The Value of Transparency
concerned with what the subjects’ goals should be.41 It is also a standard that
might differ in application between subjects, given cognitive, volitional or other
differences among them.42 In this sense, authority can be seen to have a
coordinating function, making one course of action – among many alternatives –
salient.43 If the authority is legitimate, the subject is under an obligation to try to
act as the authority demands, and this obligation applies even if the authority is
mistaken on that particular matter, so long as it is generally successful at helping
the subject conform to reason.44
In this sense, the normative force of authority is ‘content-independent’.
There is broad agreement in the authority literature that directives from a
legitimate authority have obligatory force because they come from the authority,
not because of their particular content. Yet the question of content is not entirely
irrelevant. Instead, the justificatory story appears to have two threads. Authority
theory discusses (and gives different emphasis to) relational or sociological
justifications (that is justifications reflexive to the subjects of authority) and rational
or normative justifications (that is justifications reflexive to reasons). We see the
interplay between these justificatory threads in Raz’s dismissal of consent accounts
of authority. Raz concludes that consent (a relational justification) can be a way of
reinforcing the legitimacy of a government that is already justified, but cannot
confer legitimacy upon one that is not. Consent plays a supplementary role in
justification, however ‘is binding only if there are good reasons to enable people to
subject themselves to political authorities by their consent’ (rational justification).45
Any model of authority for the Security Council setting will need to ascertain how
to weave relational and rational threads together. Yet there is a further
complicating factor relevant to the Security Council setting. The special role of the
P5 in Security Council decision-making and effectiveness is a factor that cannot be
ignored in the development of a theory of authority applicable to the Security
Council. On this basis, I offer three preliminary justifications for Security Council
authority: (a) the purposive justification; (b) the polity justification; and (c) the
princely justification. All three must be satisfied to establish the legitimate
authority of the Security Council.
(i)
The Purposive Justification: Reflexivity to Reason
The traditional account of the legitimacy of international institutions was
connected to fulfilment of functions or ‘purpose’. Modern international law was
John Tasioulas, ‘The Legitimacy of International Law’ in Samantha Besson and John Tasioulas, The
Philosophy of International Law (OUP 2010), 14.
42 John Tasioulas, ‘Human Rights, Legitimacy and International Law’ (2013) 58(1) The American Journal of
Jurisprudence 1, 15.
43 George Letsas, ‘The ECHR as a Living Instrument: Its Meaning and Legitimacy’, 16. The coordinating
role of authority is developed by Jeremy Waldron, Law and Disagreement (Clarendon Press 1998).
44 Joseph Raz, The Authority of Law (2nd ed, OUP 2009), 18, described in Roughan, supra n 35, 24.
45 Raz, supra n 41, 89. In Joseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical
Reason (OUP 2009), 159-162, Raz concludes that, as consent binds us only when there is reason for us to
do so, it is reason, not consent, which provides the key justification for authority. See Nicole Roughan,
supra n 35 32-3.
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self-consciously functionalist in its attitude to international authority for much of
the 20th century.46 International institutions were long recognized as the agents of
states – ‘loose associations for occasional specific joint action’ – whose legitimacy
was ultimately measured according to whether they were satisfactorily executing,
and operating within the scope of, the functions they were established to perform
with state consent.47
The Security Council’s purpose is denoted in Article 24 of the UN Charter,
vesting the Council with ‘primary responsibility for the maintenance of
international peace and security’. According to a purposive justification, its
authority is therefore contingent on the existence of common interest in the
maintenance of international peace and security, and the extent to which its
decisions are adequately connected to achievement of this purpose. The Security
Council has certainly flexed its muscle to break free of the strict terms of the
Charter text, expanding its authority over the years to include nation-building,
peace-keeping, war crimes prosecution, safe zones, humanitarian intervention and
even ‘legislation’ through the passage of generally-applicable resolutions such as
Resolution 1373 on terrorist-financing and Resolution 1540 on nuclear nonproliferation.48 Alluding to an increasing tendency on the part of international
organizations such as the Council to to stretch at the restraints of their establishing
instruments, Professor Alvarez has described international organizations as akin to
Mary Shelley’s Frankenstein, established to fulfil certain functions, though
gradually developing a powerful and uncontrollable force beyond the vision of
their architects.49
The broad parameters of the Charter text, and lack of certainty regarding its
limits, has led Bart Szewczyk to conclude that ‘the primary problem of the Council
… is not insufficient resources or inadequate representativeness, but lack of
agreement as to its purpose’. Indeed, debates about the meaning of a commitment
to maintaining peace and protecting life have haunted international law over the
past six decades.50 In the absence of wider understanding of the Council’s
purpose, the purposive justification is inadequate in and of itself to legitimize the
authority of international institutions such as the Security Council. Cohen
compared functionalism in law to functionalist architecture, which is ‘likewise a
repudiation of outworn symbols and functionless forms that have no meaning –
hollow marble pillars that do not support, fake buttresses, and false fronts’.51
Drawing on Cohen’s work, Orford notes that, just as positivism left the law
Anne Orford, International Authority and the Responsibility to Protect (CUP 2011), 196.
David Mitrany, ‘The Functional Approach to World Organization’ (1948) 24 International Affairs 350,
351.
48 Bruce Cronin, ‘International consensus as legal authority’ in Bruce Cronin and Ian Hurd, The UN
Security Council and the Politics of International Authority (Routledge 2008), 64.
49 Jose Alvarez, International Organizations as Law-makers (OUP 2006), 585.
50 Orford, supra n 46, 135.
51 Felix Cohen, ‘Transcendental Nonsense and the Functional Approach’ (1935) 35 Columbia Law Review
809, 825.
46
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Glasnost in the Security Council: The Value of Transparency
homeless in Weimar Germany, so functionalism has left international law
‘subjectless and thus homeless’.52 The expansion of the executive function of the
Security Council ignores the question of who is the proper subject or agent of the
Council’s authority, with inadequate attention paid to the ongoing work involved
in legitimating or delegitimating the ‘transformation of power into authority of
different kinds’.53
Here, we can draw a connection to Buchanan and Keohane’s work on the
legitimacy of global governance international institutions. Buchanan and Keohane
recognize that ‘an institution should be presumed to be illegitimate if its practices
or procedures predictably undermine the pursuit of the very goals in terms of
which it justifies its existence’.54 They critique a ‘narrow’ form of accountability in
the global governance context recognizing that, outside the context of the
democratic state, the process of holding decision-makers to account entails within
it a process of debating what the standards should be.55 In the global governance
context, the ‘purposive’ justification is not immaterial, but is inextricably tied to a
need to demonstrate adequate participation in the process of determining what
those purposes are. In this respect, international law is not a science. The ‘shared
values’ and ‘common interests’ of the international community are subject to
continual rethinking and reinvention. A clearer understanding of the purpose(s)
legitimizing the exercise of an institution’s authority can only be gleaned through a
degree of reflexivity to the public on whose behalf the relevant institution
performs its functions.
(ii)
The Polity Justification: Reflexivity to Public
Traditional accounts of legitimate authority typically focus on consent. The basic
argument – that authority is legitimate only if consented to by its subjects –
underscores classical accounts from Hobbes, Rousseau and Locke through to
contemporary variants such as Simmons and Estlund.56 It might be considered
that this consent-based justification translates neatly to the international domain.
Under the prevailing theory of international law – legal positivism – consent-based
theory is the standard account of international law’s authority. The binding
authority of international law is grounded in the acceptance of that authority by
states. Once it can be shown that a state has consented to international law,
international law enjoys a legal claim to authority over states.57 Başak Çali is the
latest scholar to provide a detailed and nuanced defence of the standard account as
a ‘viable practical route for international law to make authority claims over state
Orford, supra n 46, 195.
Ibid, 211.
54 Buchanan and Keohane, supra n 24, 22.
55 Fisher, supra n 4, 510, discussing Carol Harlow, Accountability in the European Union (OUP 2002) and
Anthony Arnull and Daniel Wincott (eds), Accountability and Leigtimacy in the European Union (OUP 2002).
56 Roughan, supra n 35, 32.
57 Louis Henkin, International Law: Politics and Values (Martinus Nijhoff 1995); Anthony Arend, Legal Rules
and International Society (OUP 1999).
52
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officials’.58
Translated to the Security Council context, the ‘state consent’ model of
legitimate authority prescribes that states are obligated to follow the authority of
the Council because they consented to its dictates by signing the UN Charter.59
The combined effect of Article 25 and Article 103 is that states agree to comply
with Security Council decisions, even where these conflict with other legal
obligations. Yet, as recent history shows (including in the Security Council
sanctions context), this formal source of authority is inadequate in and of itself to
engender compliance with sanctions decision-making. As Samantha Besson has
noted, the state consent model is at most a residual source of authority in
situations where states are both authors and subjects of international norms.60 The
problem is that, in the sanctions setting, the Security Council is becoming
increasingly reliant on non-state actors for co-operation, implementation and
enforcement of its decision-making. If these actors feel sidelined or are otherwise
dissatisfied with Security Council decision-making, they may seek to undermine
the Council’s decisions.61 Indeed, experience has shown that, even where states
have formally complied with sanctions measures, elements of civil society have
engaged in deliberate violations of sanctions decision-making where they do not
agree with the Council’s decision to list certain individuals.62
This ‘state consent’ theory is increasingly recognized as a diminished source
of authority in the international setting. Allan Buchanan gives three reasons for
rejecting the view that state consent is sufficient to explain the legitimacy of
international law.63 First, he notes the disparity of power among states in
international society where weaker states may face pressures undermining the
voluntariness of their consent. Secondly, many states are not themselves
democratic such that state consent cannot always be said to reflect the will of the
people they represent. Third, in the case of global governance institutions, the
mere fact a state consented to the establishment of the institution and has not
withdrawn that consent is too remote to render legitimate the directives they issue.
In the Security Council setting, each of these reasons is amplified. Security Council
decisions are made by 15 member states, with ten of these states held hostage to
Başak Çali, The Authority of International Law (OUP 2015).
Bruce Cronin, ‘International consensus and the changing legal authority of the UN Security Council’ in
Bruce Cronin and Ian Hurd, The UN Security Council and the Politics of International Authority (Routledge
2008).
60 Samantha Besson, ‘Institutionalising Global Demoi-cracy’ in Lukas H. Meyer, Legitimacy, Justice and
Public International Law (CUP 2009).
61 M Zürn, ‘Global Governance and Legitimacy Problems’ (2004) 39 Government and Opposition 260, 283-4.
62 See Per Cramér, ‘Recent Swedish Experiences with Targeted UN Sanctions: The Erosion of Trust in
the Security Council’ in Erika de Wet and André Nollkaemper (eds), Review of the Security Council by Member
States (Intersentia, Antwerp 2003); Serge Schmemann, ‘A Nation Challenged: Sanctions and Fallout’ New
York Times (New York 26 January 2002); ‘A Nation Challenged: In Bush’s Words: Attack on ‘2 terroristsupporting financial networks’ The New York Times (New York 8 November 2001); P Koring, ‘Federal
lawyers argue they have no obligation to bring Abdelrazik home’ Globe and Mail (8 May 2009).
63 Allan Buchanan, ‘The Legitimacy of International Law’ in Samantha Besson and John Tasioulas, The
Philosophy of International Law (OUP 2010).
58
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Glasnost in the Security Council: The Value of Transparency
the ever-present risk of veto by the permanent members. State consent is not the
foundation of Security Council authority and was never intended to be. Indeed,
the notion of consent as a proxy for legitimacy flies in the face of the declared
intentions of the drafters of the Charter, who ‘explicitly rejected the notion that
the Security Council should be representative, democratic, or equitable’.64 Over
the years since its establishment, the Council has expanded its authority beyond
the terms of the UN Charter. At the 1992 Earth Summit meeting, UN member
states recognized that ‘absence of war and military sources of instability in the
economic, social, humanitarian and ecological fields have become threats to
international peace and security’. In the Reparations case, the International Court of
Justice approved a gradual and implied extension of powers, recognizing that
‘under international law, the Organization must be deemed to have those powers,
which, though not expressly provided for in the Charter, are conferred on it by
necessary implication as being essential to the performance of its duties’.65
In the Security Council setting, the relational justification is far more complex
than the initial act of state consent to the UN Charter. In measuring the authority
of global governance institutions, the significance of a one-off act of ratification
should not be exaggerated in a rapidly changing and complex political community.
That is not to say, by extreme contrast, that the state consent model should give
way to some form of global democracy. As Weiler rightly and emphatically
recognizes, a vision of global democracy is ‘normatively ludicrous’ and quite clearly
unrealistic.66 There is broad agreement that ‘the social and political conditions for
democracy are not met at the global level and there is no reason to think that they
will be in the foreseeable future’.67
Returning to a Razian interpretation of authority, what is key is that relevant
social actors consider that the broader purpose of the maintenance of peace and
security is better achieved if they follow Security Council directives as
authoritatively binding rather than their own subjective reasons for action. If the
Council wishes to enhance its legitimacy, it must justify its directives to relevant
social actors (which at least in the sanctions context, involves both state and nonstate actors) in terms that demonstrate the effectiveness of Security Council
directives in achieving accepted aims. In turn, as Buchanan and Keohane
recognize, the scope of accepted aims can only be gleaned through ongoing,
principled, factually informed deliberation about these ‘terms’ of accountability. In
the disaggregated and unsettled parameters of the international community, broad
participation by relevant social actors can act as ‘a source of knowledge, a vehicle
Edward C. Luck, ‘The UN Security Council: Reform or Enlarge’ in Paul Heinbecker and Patricia Goff,
Irrelevant Or Indispensable?: The United Nations in the Twenty-First Century (Wilfrid Laurier Univ. Press 2005),
144, cited in Hurd, supra n 72, 165.
65 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, [1949] ICJ Reports 174,
182-3.
66 Joseph Weiler, ‘The Geology of International Law – Governance, Democracy and Legitimacy’ (2004)
64 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 547, 561. See also Oscar Schachter, ‘The Crisis
of Legitimation in the United Nations’ (1981) 50 Nordisk Tidsskrift Int’l Ret 3, 18.
67 Buchanan and Keohane, supra n 24, 15.
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of communication, and a foundation for consent’ and social pressure can act as an
opportunity for self-correction.68 The legitimacy of international legal authority
does not depend merely on a formal act of consent to a hierarchy between lawgivers and subjects, but on ‘reciprocity’ between all participants in the enterprise
which can only exist through a process of ongoing and renewable collaboration
between relevant social actors. The idea is that consent theory should give way to
consensus theory, with the aim being to ensure decision-making by international
institutions is attended by ‘collective international consensus’.69
Even for positivist international lawyers, the broadening of the notion of
consent in these circumstances is not as radical an adjustment as it might sound.
Larissa Zakharova highlights the way in which state interaction and reaction to
non-state actors, in particular intergovernmental organizations and nongovernmental organizations, is already built into positivist thinking about the
development of international law.70 The rules of treaty interpretation codified in
the Vienna Convention on the Law of Treaties themselves acknowledge limits to
initial ratification as a seal on the scope of consent, recognizing ‘subsequent
agreements between the parties’, ‘subsequent practice’ and developing rules of
international law as among the factors to be taken into account in interpreting
treaty provisions. While acknowledging that legitimacy is a ‘daunting term for the
positivist lawyer’, Antonios Tzanakopoulos acknowledges that transparency
cannot be simply traced back to some traditional source of international law, but is
an ‘ancillary’ right necessary in order to enable states to exercise their right of
control over the legality of Council action. He nevertheless links it back to the
Council’s legitimacy or effectiveness recognizing that it is not positive legal
obligation, but ‘the fear of disobedience (predominantly as non-implementation)
or non-cooperation (when it can impose no obligation) that forces the Security
Council to concede to demands for (some) transparency’.71
(iii)
The Princely Justification: Reflexivity to Power
In the Security Council setting, relational and rational accounts are insufficient to
describe the foundation of the Council’s legitimate authority. In describing the
This relies on theories of law such as theories of law such as Nonet and Selznick’s responsive law,
Brunee and Toope’s ‘interactional theory’ of international legal obligation and Johnstone’s ‘deliberative’
model, each complex theories at the heart of which is the recognition that influential norms will not
emerge in the absence of processes that allow for active participation of relevant social actors: Philippe
Nonet and Philip Selznick, Law and Society in Transition: Toward Responsive Law (Octagon Books 1978); Jutta
Brunée and Stephen J Toope, Legitimacy and Legality of International Law (CUP 2008); Ian Johnstone, The
Power of Deliberation: International Law, Politics and Organizations (OUP 2011).
69 Bruce Cronin, ‘International consensus and the changing legal authority of the UN Security Council’ in
Bruce Cronin and Ian Hurd, The UN Security Council and the Politics of International Authority (Routledge
2008), 77.
70 Larissa Zakharova, ‘The Interpretive Approach to International Law: A Positivist View’ (2015) 1(3)
Kutafin University Law Review 136, 143.
71 Antonios Tzanakopoulos, ‘Transparency in the Security Council’ in Andrea Bianchi and Anne Peters,
Transparency in International Law (CUP 2013), 386-7.
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Glasnost in the Security Council: The Value of Transparency
legitimate authority of the Security Council, it would be an error to presume that it
is necessary to exclude or override the power dynamic. As Ian Hurd has
recognized, ‘[f]ar from replacing power politics, the legitimation of the Council
changes the context of power politics by institutionalizing it’.72 Historically, the
Security Council was established to achieve ‘the cooption of overwhelming
power’, not as an internationalized public authority.73 The choice facing the
drafters of the UN Charter in 1945 has been described as a true Hobbesian
dilemma,74 presenting a choice between two unsavoury options of maximizing
freedom and equality of states (risking potential anarchy), or concentrating power
in the hands of a single authority (risking tyranny). The compromise was to
develop what Gerry Simpson describes as a ‘legalized hegemony’ merging
sovereign equality with the establishment of the P5 framework within the UN
Security Council. This structure established ‘the existence within an international
society of states whose superior status was recognised by minor powers as a
political fact’.75 Recognition of a veto power for the permanent members ensured
that the ideals underlying the UN Charter were closely tethered to power and the
need to ensure a loose concert between the most powerful states. As the New
York Times reported at the time of the San Francisco Conference, ‘most countries
reluctantly accepted the idea of a virtual world dictatorship by the Great Powers’.76
In the end, the Council fell short of Roosevelt’s plan for a Great Power
dominion. At the San Francisco Conference, the medium and smaller powers were
critical of such a privileged status for the Great Powers. Indeed, in the course of
the Charter negotiations, responsibility for the maintenance of peace and security
shifted back and forth from the executive to the plenary organ until it was finally
agreed to vest primary responsibility in the Security Council.77 Despite this, within
a few years, when the distribution of powers between the Security Council and
General Assembly proved inoperative, the GA began in practice to take on the
leading role within the UN with respect to the maintenance of international peace
and security, a position that was given at least non-binding acknowledgement in
the Uniting for Peace resolution. The terms of Article 24 reflect that the vesting of
primary responsibility for the maintenance of peace and security was as much a
trade-off between representation and efficacy ‘[i]n order to ensure prompt and
effective action by the United Nations’. It is further made clear that the members
are in agreement that the Council, in carrying out its duties, ‘acts on their behalf’.
From this, we may infer that the Security Council is more than a mere agent of the
Ian Hurd, After Anarchy: Legitimacy and Power in the United Nations Security Council (Princeton University
Press 2007), 132-3.
73 Martti Koskenniemi, ‘The Police in the Temple Order, Justice and the UN: A Dialectical View’ (1995)
6 European Journal of International Law 325, 338.
74 Robert Keohane, ‘Hobbes’s Dilemma and Institutional Change in World Politics’ in H H Holm & G
Sørensen (eds), Whose World Order? Uneven Globalization and the End of the Cold War (Westview Press 1995),
165-187.
75 Gerry Simpson, Great Powers and Outlaw States (CUP 2004), 68.
76 Russell Porter, ‘Small Countries Gain Wider Role’, New York Times (7 May 1945), 10, quoted in David
Bosco, Five to Rule Them All: The UN Security Council and the Making of the Modern World (OUP 2009), 37.
77 Bruno Simma et al (eds), The Charter of the United Nations: A Commentary (OUP 2012), 445.
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permanent members.
Nevertheless, respect for the legalized hegemony remains fundamental to the
Council’s operation. The special position of the permanent members, including
their entitlement to the veto, was integral to the very bargain that made possible
the creation of the UN in the first place.78 It has been recognized that, within the
Security Council framework, hegemony is a ‘mutually recognized and legitimate
authority relationship’.79 Keohane and Nye describe it as a relationship of complex
interdependence noting that ‘when a hegemonial power does not seek to conquer
other states but merely protect its favored status, other states benefit’.80 While it is
true that the Council has immense potential power, this power is conditional: ‘[t]he
Council cannot enforce its own resolutions, and is to that extent designed to be
dependent upon the great powers within it’.81 When the P5 fall out, they generate
‘a mutually reinforcing legitimacy crisis’ of UN authority.82 A continuing aim of
the Council framework is therefore to harness the power of the permanent
members to a multilateral framework, without limiting this power to the extent
any permanent member steps outside its framework.83 At the same time, even the
strongest powers benefit from the authority that the Council confers, as well as
from the ‘risk- and burden-sharing’ if offers.84 If ‘dependence’ on the attitudes of
permanent members becomes too overt, the Council risks losing its own authority.
The balance of legitimation is therefore a complex and volatile process. If the
delicate balance between harnessing and limiting falls too far out of equilibrium,
the Council and the permanent members both stand to be relatively
disempowered as a result.85 The ‘princely justification’ of Security Council
authority requires a balance between the power and interests of the permanent
members, where Security Council decision-making is not subservient to the
interests of the permanent members, though does not threaten their fundamental
interests.
Nico Krisch, ‘The Security Council and the Great Powers’ in Vaughan Lowe et al, The United Nations
Security Council and War (OUP 2008), 136. See also Nico Krisch, ‘International Law in Times of
Hegemony: Unequal Power and the Shaping of the International Legal Order’ (2005) 16(3) European
Journal of International Law 369.
79 Brian Frederking, The United States and the Security Council: Collective Security since the Cold War (Routledge
2007), 3.
80 Robert Keohane and Joseph S. Nye, Power and Interdependence (Longman 2011).
81 Ian Clark, Hegemony in International Society (OUP 2011), 152.
82 Ramesh Thakur, The United Nations, Peace and Security: From Collective Security to the Responsibility to Protect
(CUP 2006), 353.
83 Clark, supra n 81, 155.
84 Krisch, supra n 78, 144.
85 Clark, supra n 81, 155.
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III.
Glasnost in the Security Council: The Value of Transparency
THE WHO, WHAT, WHEN AND HOW OF TRANSPARENCY:
TRANSPARENCY IN SECURITY COUNCIL SANCTIONS
DECISION-MAKING
Transparency is not a singular concept, but is relational and contextual. The right
to transparency is not capable of being reduced to a general principle of
international law, customary or otherwise. Instead, the scope of transparency is
intricately connected in any particular context to the legitimization of an
institution’s authority. As Elizabeth Fisher notes, there are a ‘range of substantive
choices that need to be made in developing any transparency mechanism’.86 The
gradual construction of a transparency regime for Security Council decisionmaking is best left to practitioners or scholars who have studied the practical
workings of the Security Council in significant detail. While the following section
does not purport in any way to resolve these choices, I hope to demonstrate that
answers to the ‘who, what, when and how’ of transparency all follow much more
clearly when they stem from a better understanding of the ‘why’ of transparency.
Following the above analysis, it is possible to state, in broad terms, a publicity
principle for the Security Council context. Essentially, the Security Council should
be presumed to publicize sufficient information to enable relevant social actors to
understand that institutional acts (and omissions) were taken in the exercise of the
Council’s legitimate authority. The presumption operates in favour of maximum
disclosure. This presumption will only be rebutted where disclosure is inconsistent
with:
(a) recognized purposes of the Security Council;
(b) promoting shared understanding of the justifications for Security Council
decision-making among relevant social actors; or
(c) the fundamental interests of the permanent members.
In this final section, I will briefly elaborate the way transparency could work in the
Security Council sanctions context.
(a) THE ‘WHO’ OF TRANSPARENCY: RELATIONSHIP TO TARGET
Transparency is not so much about fairness to individuals directly affected by the
decision-making process, but about authority and the role that access to
information can play in legitimizing exercise of that authority. It is not so much
about individual access to information as about public access. The term implies a
degree of responsiveness to a much larger and more diffuse public. As discussed
above, the aim of publicity is not merely needed to ensure an institution is
fulfilling its purposes, but also to enable deliberation on the potential for
revisability of the institutions goals and purposes. Under conditions of broad
86
Fisher, supra n 4, 288.
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transparency, it is important that information is provided, not only to those
designated as accountability holders (in the Security Council context, member
states), but also to ‘external epistemic actors’ (what Buchanan and Keohane term
‘the transnational civil society channel of accountability’), such as nongovernmental institutions and other actors in transnational civil society.87 Anne
Peters notes that international institutions should also grant more information to
democratic parliaments, who provide important links to citizens.88 Failure to
cooperate in making available to outsiders the information that would be needed
to determine whether certain legitimacy criteria are satisfied itself creates a
presumption that is illegitimate.89
(b) THE ‘WHAT’ OF TRANSPARENCY: RELATIONSHIP TO JUSTIFICATION
Full transparency is potentially infinite. Should it include: Verbatim transcripts of
Security Council deliberations about sanctions resolutions? The names of those
listed? Their addresses? Intelligence information on the basis of which they were
listed? Details of the Ombudsperson’s salary? Recordings of conversations
between the Ombudsperson and listed individuals? The favourite colours of
members of the sanctions committee?
As a starting point, it is worth recalling that what is above all relevant under
the publicity principle is the maxim or justification for institutional action. At the
very least, the Security Council must offer public justifications of the more
controversial and consequential policies. Moreover, relevant social actors must be
placed in a position to determine whether the public justifications are cogent in
legitimacy terms. According to our legitimacy criteria above, relevant actors must
be able to assess whether (a) the relevant action is pursuant to a recognized
purpose of the Security Council; (b) the link between the action and the purpose is
supported by collective international consensus. As Buchanan and Keohane note,
‘[b]oth institutional practices and the moral principles that shape the terms of
accountability must be revisable in the light of critical reflection and discussion’.90
Broad transparency must allow for revisability ‘not only of the institution’s
processes and structures, but even of its most fundamental goals and its role in the
pursuit of global justice’.91
Much is made in the authority scholarship of the fact that authority is interdependent of content. Yet, as described above, it is clear that there is interplay
between representativeness and rationality of decision-making content in shoring
up the legitimacy of authority. Public understanding of the justification or reasons
Buchanan and Keohane, supra n 24, 428.
Anne Peters, ‘Towards Transparency as a Global Norm’ in Andrea Bianchi and Anne Peters (eds),
Transparency in International Law (CUP, 2013), 554.
89 Buchanan and Keohane, supra n 24.
90 Ibid, 428.
91 Ibid.
87
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Glasnost in the Security Council: The Value of Transparency
underlying decision-making is integral to the legitimation of authority. One of the
goals of transparency mechanisms is to enhance the legitimacy of authority by
encouraging the ‘right’ form of reason, that is, public reason that is both rational
(linked to purposive justification) and representative (linked to polity justification).
The idea is that having to defend one’s policy reasons in public leans one toward
using public reason, creating ‘the necessity to articulate one’s position carefully, to
defend it against unexpected counter arguments, to take opposing points of view
into consideration, to reveal the steps of reasoning one has used, and to state
openly the principles to which one appeals’.92 Public reason can be contrasted with
(i) private reason, driven by self-interest; and also (ii) plebiscitary reason, that is
shallow populist reason that can range ‘from mild pandering to manipulative
demagoguery’.93 As Simone Chambers recognizes, ‘ideally what we want is a public
sphere not entirely dominated by plebiscitary reason and closed sessions not
entirely dominated by private reason’.94 She notes that, while sometimes publicity
can have a positive effect on deliberation by ensuring reasons are more
representative, it can also have a deleterious effect on deliberation, detracting from
its rationality. James Madison said famously that ‘no [US] Constitution would ever
have been adopted by the convention if the debates had been public’.95 Theorists
such as Jon Elster and Gutmann and Thompson have appealed to the
Constitutional Convention of 1787 to illustrate the beneficial effects of secrecy on
the quality of deliberations. Elster compares the Constitutional Convention of
Philadelphia of 1787, which deliberated in secret and the Assemblée Constituante
in France of 1789, which deliberated in public, concluding that:
Many of the debates at the Federal Convention were indeed of high
quality: remarkably free from cant and remarkably grounded in rational
argument. By contrast, the discussions of the Assemblée Constituante
were heavily tained with rhetoric, demagoguery, and overbidding.96
For Gutmann and Thompson, the legitimacy of the closed deliberations of the
drafters was assured through the process of state ratification, which served as ‘a
form of retrospective accountability for the process as well as for its results’.97 In
this sense, limitations on the ‘what’ of transparency can sometimes be justified
through an adjustment to the ‘when’ of transparency.
Sissela Bok, Secrets (Pantheon 1982), 114, cited in Simone Chambers, supra n 19, 391.
Simone Chambers, supra n 19, 396.
94 Ibid, 398.
95 Max Farrand (ed), The Records of the Federal Convention of 1787, vol 3 (Yale University Press 1911),
CCLXVII.
96 Jon Elster, ‘Strategic Uses of Argument’ in Kenneth J Arrow (ed), Barriers to Conflict Resolution (Norton,
1995), 251.
97 Gutmann and Thompson, supra n 10, 115, 116.
92
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(c) THE ‘WHEN’ OF TRANSPARENCY: RELATIONSHIP TO TIME
As the example above shows, the timing of disclosure can be important in
maximizing the capacity of transparency mechanisms to enhance the legitimacy of
decision-making. Substantive choices need to be made as to when something is
made transparent. On occasion, it may be preferable to hold the deliberation
process behind closed doors, so long as the justifications for decisions reached are
ultimately publicized. As a general rule, Anne Peters notes that the trend is away
from merely ‘reactive’ towards more proactive transparency.98 Institutions tend to
engage in active disclosure policies rather than providing information upon
specific request.
(d) THE ‘HOW’ OF TRANSPARENCY: RELATIONSHIP TO EXPERTISE
Transparency of itself, in the sense of wide access to information, accomplishes
very little. Information is not a synonym for knowledge and too much information
can in fact obscure understanding creating ‘data snowing’ or ‘data smog’.99 As
Sheila Jasanoff has noted, ‘information means little to society in the absence of an
active interpretative culture’.100 Transparency must therefore be seen as part of a
larger institutional framework. Donaldson and Kingsbury note that the impact of
transparency measures depends in large part on the existence of intermediaries
willing and able to make use of the information provided. These may include
NGOs, academics, corporations, news media and other interested parties. By
fostering productive contributions to its work by other actors, they note the way in
which transparency measures can facilitate reform and development within the
institution and thereby strengthen its epistemic authority.
IV.
CONCLUSION
Just as there is an intimate connection between information and power, so is there
a close relationship between transparency and legitimacy. David Kennedy
recognized the importance of broader access to information in his account that
‘[t]he distribution of knowledge about the global order is also a constitutional
issue’.101 There is a legitimacy problem in the international order in that
‘[k]nowledge about the ways the world is governed is not spread evenly’ but
Anne Peters, ‘Toward Transparency as a Global Norm’ in Bianchi and Peters, supra n 1, 536.
Ibid, 539.
100 Sheila Jasanoff, ‘Transparency in Public Science: Purposes, Reasons, Limits’ (2006) 69 Law and
Contemporary Problems 21, 26.
101 David Kennedy, ‘The Mystery of Global Governance’ (1996) 34 Ohio Northern University Law Review
827, 833.
98
99
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Glasnost in the Security Council: The Value of Transparency
‘clumps in the centers and spreads unevenly to the periphery’.102 If, as I have
suggested, the Security Council’s legitimate authority is predicated on the
availability of public justifications that demonstrate the representative and
purposive foundations of Council decision-making (while respecting the
fundamental interests of the permanent members), the Council must build
adequate and appropriate transparency mechanisms into its decision-making.
Incorporating transparency on the basis it is ‘a good thing’ is not sufficient.
Instead, it is important to develop a greater understanding of the idiosyncratic
foundations of Security Council authority and develop transparency mechanisms
uniquely disposed to support and enhance the effectiveness of its decision-making.
The result will likely be an institutional framework that opens up Security Council
decision-making to far greater public scrutiny, but also recognizes the importance
– and legitimacy – of a degree of secrecy where necessary to achieve the Council’s
ends. Where constructed with appropriate attention to the ‘why’ of transparency,
both disclosure and non-disclosure can be justified in terms that ultimately
support and enhance the legitimate authority of the UN Security Council.
102
Ibid.
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