{"id":431992,"date":"2010-03-15T12:40:48","date_gmt":"2010-03-15T16:40:48","guid":{"rendered":"http:\/\/opiniojuris.org\/?p=11649"},"modified":"2010-03-15T12:40:48","modified_gmt":"2010-03-15T16:40:48","slug":"how-secret-are-secret-multilateral-negotiations","status":"publish","type":"post","link":"https:\/\/mereja.media\/index\/431992","title":{"rendered":"How Secret are Secret Multilateral Negotiations?"},"content":{"rendered":"

by Duncan Hollis <\/em><\/strong><\/p>\n

The general consensus among comments to my post last week <\/a>on the previously-unacknowledged U.S.-Japanese security agreements was “no big deal.”\u00a0 These pacts reinforce an already well-developed practice of states doing\u00a0deals–whether legally binding or political commitments–without\u00a0U.N. registration or public disclosure.\u00a0 Similarly, they reinforce existing views of Executive authority to\u00a0conclude sole-executive\u00a0agreements on defense-related matters for the United States.\u00a0<\/p>\n

So, if\u00a0everyone’s OK with such secret\u00a0deals, how\u00a0do\u00a0we feel about secret negotiations?\u00a0 If you’re the European Parliament (EP), the answer is apparently, “not\u00a0too good<\/a>.”\u00a0 Last week the EP voted 633-13 <\/a>(with 16 abstentions) to call for more transparency in on-going multilateral negotiations for an Anti-Counterfeiting Trade Agreement (ACTA).\u00a0\u00a0The ACTA is a proposed\u00a0agreement by OECD states to strengthen intellecutal property rights enforcement and combat counterfeiting and priacy of music, films, luxury brands, etc.\u00a0 The ACTA negotiations have been on-going since 2007 (the next round begins\u00a0April 12 in New\u00a0Zealand) with all the participants agreeing to keep the negotiations confidential.\u00a0 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.\u00a0 Here’s what the EP press release <\/a>had to say:<\/p>\n

\n

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.”<\/p>\n

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” . . . \u00a0In 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.\u00a0 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.”\u00a0 ACTA provisions “should not affect global access to legitimate, affordable and safe medicinal products, including innovative and generic products”, says the resolution.<\/p>\n<\/blockquote>\n

USTR is leading the talks for the United States, and it appears pretty tight lipped <\/a>on the progress of\u00a0negotiations.\u00a0 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 <\/a>on what they learn because of the negotiations’ “national security” implications.<\/p>\n

Having done a fair\u00a0bit of treaty negotiations when\u00a0I served in the State Department, I’m certainly not a Wilsonian when it comes to such talks.\u00a0 There’s a lot to be said for keeping talks confidential, most notably in allowing\u00a0a more honest exchange of what positions parties believe they can accept without having to posture for domestic audiences.\u00a0 Others<\/a>, however, assume that when treaty\u00a0obligations would directly effect individuals, the public has a right to know<\/a>\u00a0the\u00a0proposed terms of any deal.\u00a0 Here, the United States is apparently proposing to do this as a sole executive agreement<\/a>, meaning that neither the Senate nor Congress would have to consent to the agreement.\u00a0 Of course, that also means that the agreement would need to find its authority under existing U.S. IP laws or areas\u00a0of sole executive authority.\u00a0 If so, that seems to undercut any argument that the ACTA will\u00a0have dramatic domestic impacts (at least for those in the United States).\u00a0 Still,\u00a0I’d be interested what others view as an acceptable line between public and confidential negotiations.\u00a0 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?\u00a0\u00a0<\/p>\n

Of course, whether or not\u00a0you believe secret negotiations are appropriate may now be a moot point.\u00a0\u00a0If the ACTA is any guide, the reality is that\u00a0confidential\u00a0multilateral negotiations are rarely confidential.\u00a0 Leaks abound<\/a>.\u00a0 Indeed, the EP vote appears to have been a reaction to\u00a0the latest in a long line of leaks <\/a>about the various\u00a0negotiating positions.\u00a0\u00a0My My sense, moreover,\u00a0is that this reflects a general trend in multilateral negotiations.\u00a0 Bilateral negotiations (or those involving a handful of parties) may still get the benefits of confidentiality.\u00a0 But once you get a certain number of participants involved (not to mention the stakeholders they consult, with or without\u00a0confidentiality agreements<\/a>), it becomes very hard to\u00a0avoid leaks and other disclosures.\u00a0 Now maybe some confidentiality is better than none.\u00a0 But I believe that the age when multilateral negotiators could work largely in secret has passed.\u00a0 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.\u00a0 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 <\/em>community).<\/p>\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

by Duncan Hollis The general consensus among comments to my post last week on the previously-unacknowledged U.S.-Japanese security agreements was “no big deal.”\u00a0 These pacts reinforce an already well-developed practice of states doing\u00a0deals–whether legally binding or political commitments–without\u00a0U.N. registration or public disclosure.\u00a0 Similarly, they reinforce existing views of Executive authority to\u00a0conclude sole-executive\u00a0agreements on defense-related matters […]<\/p>\n","protected":false},"author":4226,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-431992","post","type-post","status-publish","format-standard","hentry","category-news"],"_links":{"self":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/431992","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/users\/4226"}],"replies":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/comments?post=431992"}],"version-history":[{"count":0,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/431992\/revisions"}],"wp:attachment":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/media?parent=431992"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/categories?post=431992"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/tags?post=431992"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}