Project

Transparency; Global governance; Participatory democracy; Accountability; Constitutionalization; Global administrative law; Confidentiality; Compliance control

Lead
Lay summary
International Transparency Lay SummaryOur research goal is to analyze the legal status, the functions, potential, legal limits, and legalproblems related to transparency in all fields of international law. Our first research hypothesis isthat (descriptively) the significance and function of transparency has been different in national andin international law. This disjunction reflects the distinction between both legal spheres. Startingfrom the commonplace that global governance, whose central steering mode is international law,is becoming more and more regulatory in nature, shapes the activity of national governments andbureaucracies, regulates markets, and intensely affects citizens in their daily lives, we assume(second research hypothesis) that (descriptively) the principle of transparency is coming to bearmore on global governance as well, and is here beginning to fulfil similar functions, as in thedomestic setting. Ultimately, the rise of transparency can be conceptualised (third researchhypothesis) as a manifestation of another paradigm shift, namely a shift from ‘private’ to a‘public’ law-character of international law. We assume that in international law, the primarily‘secret’ mode of governance negotiation and bargaining is on its way to being complemented bythe primarily ‘public’ mode of deliberation and arguing.The starting point of our research is a brief descriptive analysis of transparency at the domesticlevel which can build on extensive existing scholarship. Our project will then map internationaltransparency in the following analytical framework and answer the related research questions.1) Branches of international lawWe will first identify the issues-areas and sub-disciplines in which transparency has so far gainedlegal significance (in the presumed order of importance): International environmental law,international economic law (WTO and investment protection), arms and nuclear proliferationcontrol, international human rights law including international health law, peace and security. Afoil for testing our hypothesis that transparency is increasingly performing similar functions (andis acquiring a similar legal status) in global governance as in domestic law is the evolution oftransparency as a legal principle in EU-law.2) What are the legal bases of transparency requirements?3) Analysis of the case law and the practice on transparency on the relevant regime.4) The ‘debtors’ and ‘creditors’ of transparency obligations.5) In which type of governance and which phase of the legal process?6) The object of transparency7) The functions of transparency8) The procedures of transparency9) Consequences of nondisclosure10) Grounds for refusal of transparency11) Backdraws of transparency and trade-offsFollowing this analytical framework, our research will take stock of the use of transparency as aglobal governmental tool, and of the areas in which transparency is lacking. The ultimate questionis whether there is a general international legal principle (or sector-specific principles) oftransparency, what its legal functions and limits are (also in comparison to ‘national’transparency), and whether international law is undergoing a paradigm shift towards a genuinely‘public’ law in the dual sense of the word: a law not only in the global public interest, but alsoopen to the public.

Direct link to Lay Summary

Last update: 21.02.2013

Self-organised

Number	Title	Start	Funding scheme

Our research goal is to analyze the legal status, the functions, potential, legal limits, and legal problems related to transparency in all fields of international law. Our first research hypothesis is that (descriptively) the significance and function of transparency has been different in national and in international law. This disjunction reflects the distinction between both legal spheres. Starting from the commonplace that global governance, whose central steering mode is international law, is becoming more and more regulatory in nature, shapes the activity of national governments and bureaucracies, regulates markets, and intensely affects citizens in their daily lives, we assume (second research hypothesis) that (descriptively) the principle of transparency is coming to bear more on global governance as well, and is here beginning to fulfil similar functions, as in the domestic setting. Ultimately, the rise of transparency can be conceptualised (third research hypothesis) as a manifestation of another paradigm shift, namely a shift from ‘private’ to a ‘public’ law-character of international law. We assume that in international law, the primarily ‘secret’ mode of governance negotiation and bargaining is on its way to being complemented by the primarily ‘public’ mode of deliberation and arguing.The starting point of our research is a brief descriptive analysis of transparency at the domestic level which can build on extensive existing scholarship. Our project will then map international transparency in the following analytical framework and answer the related research questions. 1) Branches of international lawWe will first identify the issues-areas and sub-disciplines in which transparency has so far gained legal significance (in the presumed order of importance): International environmental law, international economic law (WTO and investment protection), arms and nuclear proliferation control, international human rights law including international health law, peace and security. A foil for testing our hypothesis that transparency is increasingly performing similar functions (and is acquiring a similar legal status) in global governance as in domestic law is the evolution of transparency as a legal principle in EU-law.2) What are the legal bases of transparency requirements? 3) Analysis of the case law and the practice on transparency on the relevant regime.4) The ‘debtors’ and ‘creditors’ of transparency obligations.5) In which type of governance and which phase of the legal process?6) The object of transparency7) The functions of transparency8) The procedures of transparency9) Consequences of nondisclosure 10) Grounds for refusal of transparency11) Backdraws of transparency and trade-offsFollowing this analytical framework, our research will take stock of the use of transparency as a global governmental tool, and of the areas in which transparency is lacking. The ultimate question is whether there is a general international legal principle (or sector-specific principles) of transparency, what its legal functions and limits are (also in comparison to ‘national’ transparency), and whether international law is undergoing a paradigm shift towards a genuinely ‘public’ law in the dual sense of the word: a law not only in the global public interest, but also open to the public.