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Transparency vs. secrecy – Public participation in the transatlantic

trade negotiations

Winter Seminar 2015

(State and Civil Society in Central and Eastern Europe, 23-27 February 2015)

Balazs HORVATHY PhD

Szechenyi Istvan University (Győr)

Email: horvb@ga.sze.hu

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Transparency vs. secrecy – Public participation in the transatlantic trade negotiations

o Introductiono Transparency and public participation in the

IELo Transparency of the EU Trade negotiationso The transparency of the TTIP – The legal

debateo Concluding remarks & discussion

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Introduction

• Starting point: obscurity over the Commission’s mandate in the TTIP negotiations

• the transparency is not a new phenomenon in the field of the international economic law (IEL)

• Lack of transparency: Democratic legitimacy of IEL?

• Transparency is recognized as legal concept

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Transparency and public participation in the IEL

• Transparency: the availability and accessibility of knowledge and information about:

– the meaning of norms, rules, and procedures established by a regulation, trade agreement etc. and practice of the regime, and

– the policies and activities of parties to the treaty and of any central organs of the regime as to matters relevant to treaty compliance and regime efficacy.

• Public participation: the process by which a government, organization, the EU institutions itself consult with interested or affected individuals, organizations, NGOs. etc. before regulating or making a decision with the aim of achieving better and more acceptable regulations, decisions.

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Transparency and public participation in the IEL

• E.g. GATT Article X

• Is there a place for secret trade diplomacy and negotiations?

„It is obvious to any one who

has been in charge of the interests

of his country abroad that the day

secrecy is abolished negotiations

of any kind will become impossible.

[Jules Cambon, 1931, French diplomat,

Ambassador to the US]

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Transparency of the EU Trade negotiations

“Europe’s trade policy [is] run by a committee of unelected technocrats who believe in the good of trade liberalisation and who are largely insulated from political tensions and pressures.” Richard Baldwin (Professor at Geneva Graduate Institute) Commission’s role

•1. Preparation of the negotiations

•2. Negotiations

•3. Approval of the Agreement

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The transparency of the TTIP – The legal debate

• CJEU Case C-350/12 providing more rights to access to negotiation documents

Sep 2014: EU Ombudsman initiated public consultation

Jan 2014: Commission publishes background papers of the negotiations

• However, no access to US (confidential) documents

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Concluding remarks & discussion

• All questions, remarks or suggestions are welcome

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Readings & useful materials (1)

• Frederick Schauer: Transparency in three Dimensions, 2011 U. Ill. L. Rev. 1339 2011.

• Carl-Sebastian Zoellner: transparency: an analysis of an evolving fundamental principle in international economic law, 27 Mich. J. Int'l L. 579 2005-2006.

• Friedl Weiss: transparency as an element of good governance in the practice of the eu and the wto: overview and comparison, 30 Fordham Int'l L.J. 1545 2006-2007.

• Corneliu Bjola: The ethics of secret diplomacy: a contextual approach, Journal of Global Ethics (Volume 10, Issue 1, 2014).

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Readings & useful materials (2)

• UNCITRAL - Rules on Transparency in Treaty-based Investor-State Arbitration

• REGULATION (EC) No 1049/2001 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 30 May 2001 regarding public access to European Parliament, Council and Commission documents

• COMMISSION DECISION of 25.11.2014 on the publication of information on meetings held between Members of the Commission and organisations or self-employed individuals

• European Ombudsman (Own-initiative inquiry 01/11/2014/MMN)

• C-350/12 P Council of the European Union v Sophie in ’t Veld.

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Thank you for your kind attention

Balazs HORVATHY PhD

Szechenyi Istvan University (Győr)

Email: horvb@ga.sze.hu