How Secret are Secret Multilateral Negotiations?

How Secret are Secret Multilateral Negotiations?

The general consensus among comments to my post last week on the previously-unacknowledged U.S.-Japanese security agreements was “no big deal.”  These pacts reinforce an already well-developed practice of states doing deals–whether legally binding or political commitments–without U.N. registration or public disclosure.  Similarly, they reinforce existing views of Executive authority to conclude sole-executive agreements on defense-related matters for the United States. 

So, if everyone’s OK with such secret deals, how do we feel about secret negotiations?  If you’re the European Parliament (EP), the answer is apparently, “not too good.”  Last week the EP voted 633-13 (with 16 abstentions) to call for more transparency in on-going multilateral negotiations for an Anti-Counterfeiting Trade Agreement (ACTA).  The ACTA is a proposed agreement by OECD states to strengthen intellecutal property rights enforcement and combat counterfeiting and priacy of music, films, luxury brands, etc.  The ACTA negotiations have been on-going since 2007 (the next round begins April 12 in New Zealand) with all the participants agreeing to keep the negotiations confidential.  Members of the EP apparently have problems with this lack of transparency and want to see (and have the public see) what the negotiators are up to.  Here’s what the EP press release had to say:

The Commission and the Council should grant public and parliamentary access to the Anti-Counterfeiting Trade Agreement (ACTA) negotiation texts and MEPs should be fully informed in good time about their initiatives, says an EP resolution adopted on Wednesday by 633 votes in favour, 13 against, and 16 abstentions. Otherwise, Parliament “reserves its right to take suitable action, including bringing a case before the Court of Justice in order to safeguard its prerogatives.”

Parliament called on the Commission to continue the negotiations on ACTA and limit them to the existing European intellectual property rights enforcement system against counterfeiting” . . .  In its resolution, Parliament voices concern over the lack of transparency in the negotiations, and the fact that no parliamentary approval was sought for the negotiating mandate.  MEPs recall that, since the entry into force of the Lisbon Treaty on 1 December 2009, “the Commission has had a legal obligation to inform Parliament immediately and fully at all stages of international negotiations.”  ACTA provisions “should not affect global access to legitimate, affordable and safe medicinal products, including innovative and generic products”, says the resolution.

USTR is leading the talks for the United States, and it appears pretty tight lipped on the progress of negotiations.  That said, it appears they’ve taken precautions to keep at least some interested stakeholders in the loop — provided those stakeholders agree to keep mum on what they learn because of the negotiations’ “national security” implications.

Having done a fair bit of treaty negotiations when I served in the State Department, I’m certainly not a Wilsonian when it comes to such talks.  There’s a lot to be said for keeping talks confidential, most notably in allowing a more honest exchange of what positions parties believe they can accept without having to posture for domestic audiences.  Others, however, assume that when treaty obligations would directly effect individuals, the public has a right to know the proposed terms of any deal.  Here, the United States is apparently proposing to do this as a sole executive agreement, meaning that neither the Senate nor Congress would have to consent to the agreement.  Of course, that also means that the agreement would need to find its authority under existing U.S. IP laws or areas of sole executive authority.  If so, that seems to undercut any argument that the ACTA will have dramatic domestic impacts (at least for those in the United States).  Still, I’d be interested what others view as an acceptable line between public and confidential negotiations.  Am I being too kind to government interests in favoring a broad entitlement to confidentiality at least until the negotiators reach agreement on a text?  

Of course, whether or not you believe secret negotiations are appropriate may now be a moot point.  If the ACTA is any guide, the reality is that confidential multilateral negotiations are rarely confidential.  Leaks abound.  Indeed, the EP vote appears to have been a reaction to the latest in a long line of leaks about the various negotiating positions.  My My sense, moreover, is that this reflects a general trend in multilateral negotiations.  Bilateral negotiations (or those involving a handful of parties) may still get the benefits of confidentiality.  But once you get a certain number of participants involved (not to mention the stakeholders they consult, with or without confidentiality agreements), it becomes very hard to avoid leaks and other disclosures.  Now maybe some confidentiality is better than none.  But I believe that the age when multilateral negotiators could work largely in secret has passed.  And, if that’s the case, those going into such negotiations need to operate under a different set of assumptions in terms of the positions they advance, and the deals they cut.  In the information age, if those positions and deals are at all disputed, we should expect they’ll get posted somewhere on the Internet, and dispensed with remarkable rapidity to those interested (including, one expects, the Opinio Juris community).

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Europe, General, National Security Law, North America, Trade & Economic Law
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Martin Holterman

More details about the role the EP should have in negotiations are in this letter from Jerzy Buzek, the President of the Parliament, to Zapatero.

M. Gross
M. Gross

Everything leaked regarding the ACTA seems to validate that we need to shine light on the whole sordid mess.

The secrecy and the method of making it an executive agreement instead of a treaty seems to be mostly about guaranteeing the electorate never has a chance to express their opinion on the matter until the deal is done.


Without trying to delve into the issue of whether secret negotiations make sense politically, as an international lawyer I hope I will never have to apply a treaty that has been negotiated in secrecy. After all, the traveaux remain one of the most important sources to shed light on the interpretation of treaty rules. If the negotiating texts are being kept confidential it will often be difficult to ascertain why some rules turned out like they did.