Transparency has become a catchcry across a host of international law regimes. Hailed as an attribute of good governance, a safeguard against corruption, and an instrument of empowerment for diverse stakeholders, its frequent invocation has led to a growing interest in the parameters of the concept and its relationship (if any) with international law.Footnote ¹

Bianchi and Peters’ co-edited book Transparency in International Law seeks to map transparency practices in a range of regimes while also providing a deeper analysis of the concept's substance and legal status. This ambitious project casts its empirical net widely. The book comprises 20 chapters organized into sections on international environmental law, international economic law, international human rights law, international health law, international humanitarian law, international peace and security law, and cross-cutting issues. Within these sections, contributors address the application of transparency to states, international organizations, NGOs, and private entities. Chapters by the two co-editors bookend the volume, providing an overview of the project and a range of conclusions on conceptual and normative aspects of transparency.

The co-editors address the complexities of transparency – its fuzzy contours, its potential pitfalls, and its awkward legal status – with a welcome frankness. A key feature of the volume is their decision not to define ‘transparency’ at the outset. Instead, Bianchi and Peters opt to leave the question of definition to the individual contributors and to await ‘the result of their inductive analysis’.Footnote ² This decision helps to expose the multitude of transparency mechanisms in operation, while also stimulating a rich dialogue on the parameters of transparency in the contributions.

Some chapters eschew definitions in favour of an account of potential matters encompassed by transparency,Footnote ³ or adopt a definition that is limited to the specific field or regime discussed.Footnote ⁴ Others adopt a definition that, while specific, contains elements that could usefully be transposed into discussions of other fields.Footnote ⁵ Finally, some adopt definitions that aspire to general application. For example, Tzanakopoulos defines transparency as ‘a general right of access to information held by those exercising public powers and in relation to the exercise of these public powers, irrespective of motives or specific interest on the part of those requesting access to the information’,Footnote ⁶ while Creamer and Simmons focus on the obligation of output, characterizing transparency as ‘the dissemination of regular and useful information’.Footnote ⁷ In the book's final chapter, Peters concludes that transparency is a ‘culture, condition, scheme or structure in which relevant information (for example on law and politics) is available’.Footnote ⁸

While the lack of an encompassing analytic framework stimulates diverse insights, it can also at times be frustrating. Differences in definitional choices may hinder the reader's capacity to detect commonalities in transparency mechanisms across regimes. An example of this complexity is the range of approaches to the relationship between transparency and related ‘good governance’ principles such as participation or effective review.Footnote ⁹ Some contributions take a confined view of transparency and deliberately avoid discussion of these principles,Footnote ¹⁰ while others discuss participation or review in depth as elements or instruments of transparency.Footnote ¹¹ The chosen definition of transparency will also affect an understanding of its potential shortcomings. For example, warnings of ‘information overload’ as a possible negative consequence of transparency may be less relevant if transparency is characterized as the dissemination of ‘relevant’ or ‘useful’ information.

One of the most refreshing features of the volume is its willingness to explore counter-narratives and transparency's potential ‘dark sides’. Bianchi's opening chapter cautions against an unnuanced view of transparency and emphasizes the concept's susceptibility to manipulation. Across the board, one finds resistance to the notion of ‘absolute transparency’ and a strident defence of the need for pockets of confidentiality to protect certain stages of deliberations, confidential business information, and core elements of national security. In such cases, transparency may be neither desirable nor effective: Hinojosa Martínez predicts that excessive disclosure policies could push sensitive negotiations into informal venues, while Donaldson and Kingsbury note that transparency requirements may lead an institution or its members simply to stop recording certain information.Footnote ¹² These insights demonstrate the complicated interrelationship between transparency and confidentiality and the potential for transparency mechanisms to be circumvented.

The volume also provides a nuanced picture of secrecy in global governance. In a compelling chapter, Ratner surveys the unapologetically secretive International Committee of the Red Cross (ICRC), which uses confidentiality as an instrument to ensure access to victims and to promote candour between parties to a conflict. While confidentiality is not absolute, a decision by the ICRC to disseminate information is based on ‘an internal judgment as to what will be most effective for victims’.Footnote ¹³ The ICRC example highlights that confidentiality may itself be a tool for promoting full and frank disclosure, albeit to a strictly limited audience.

A central concern of the project is the legal characterization of transparency. At the outset, Bianchi reflects that transparency is ‘not immediately associated with international law’, and that it is difficult to slot into the traditional sources of international law.Footnote ¹⁴ Concluding that transparency is best understood as a ‘concept’,Footnote ¹⁵ Bianchi draws on Vaughan Lowe's discussion of ‘interstitial norms’Footnote ¹⁶ to situate transparency as one of several concepts or norms that act as ‘permanent connectors between the law and the changing societal realities’.Footnote ¹⁷

Within the contributions, conclusions on the legal status of transparency vary depending on the precise institution or issue discussed. Tzanakopoulos’ account of the UN Security Council persuasively argues that transparency cannot be characterized as a customary law obligation and that it is somewhat fruitless to try to anchor it as a ‘general principle’ under Article 38(1)(c) of the Statute of the International Court of Justice. However, he proposes an alternative conception of transparency as an ancillary obligation imposed on the Security Council by reason of its institutional structure and the ultimate right of states to control its legality.Footnote ¹⁸ Boyle and McCall-Smith conclude that while it is easy enough to identify practice, ‘it is harder to identify a generally applicable legal principle underpinning transparency in the deliberative phase of international law-making, or its limits’.Footnote ¹⁹ In a careful investigation of access to information policies in global governance institutions, Donaldson and Kingsbury conclude that there is no one ‘law’ of transparency in force, although it is possible to discern ‘some pathways by which a “global administrative law” of transparency may be developing’.Footnote ²⁰ Discussing these differing findings, Peters concludes that, while the blurry contours of transparency speak against its characterization as a norm of ‘hard international law’, it retains an important role as a normative principle.Footnote ²¹

While the empirical studies do not support the finding that a generally-applicable legal standard of transparency has developed, it is undeniable that there is a broad trend towards the implementation of transparency mechanisms.Footnote ²² The volume's sections give a snapshot of an emergent moment in global governance, an ongoing project that is occurring not necessarily as a result of top-down strictures but through cross-fertilization and answered calls for information from a diffuse group of stakeholders. That said, the different studies reveal variations in transparency mechanisms both within and between legal regimes. Maupin's conclusion in her standout contribution that the international investment regime is ‘too complex, decentralized and multi-faceted to allow for the simple implementation of transparency principles across the board’ has a broader truth for international law as a whole.Footnote ²³

Peters is upfront about the fact that the concluding chapter, which seeks to bring together findings throughout the volume, does not – and perhaps cannot – provide a ‘coherent picture’ of the concept of transparency.Footnote ²⁴ Although the book does not present a unified thesis on transparency in international law, it succeeds in its aim of providing a solid foundation for future scholarship through sound empirical research and rigorous analysis across a range of institutions and issues. In all, this book is an excellent addition to the literature, with rich pickings for those working both on transparency and on the individual institutions and issues that are surveyed.